ML25220A284

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NRC Staff Brief in Opposition to the Beyond Nuclear, Dont Waste Michigan, Michigan Safe Energy Future, Three Mile Island Alert, and Nuclear Energy Information Service Appeal of the Atomic Safety and Licensing Boards Decision in LBP-25-5
ML25220A284
Person / Time
Site: Palisades 
Issue date: 08/08/2025
From: Naber A
NRC/OGC
To:
NRC/OCM
SECY RAS
References
RAS 57445, ASLBP 24-986-01-LA-BD01, 50-255-LA-3, LBP-25-5
Download: ML25220A284 (0)
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Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of HOLTEC DECOMMISSIONING INTERNATIONAL, LLC, AND HOLTEC PALISADES, LLC (Palisades Nuclear Plant)

Docket No. 50-255-LA-3 NRC STAFF BRIEF IN OPPOSITION TO THE BEYOND NUCLEAR, DONT WASTE MICHIGAN, MICHIGAN SAFE ENERGY FUTURE, THREE MILE ISLAND ALERT, AND NUCLEAR ENERGY INFORMATION SERVICE APPEAL OF THE ATOMIC SAFETY AND LICENSING BOARDS DECISION IN LBP-25-5 Anita Ghosh Naber Kevin Bernstein Michal Chwedczuk Counsel for NRC Staff August 8, 2025

i TABLE OF CONTENTS TABLE OF AUTHORITIES.......................................................................................................... ii INTRODUCTION........................................................................................................................ 1 BACKGROUND.......................................................................................................................... 2 I.

Palisades Licensing History and NRC Staffs Environmental Review.............................. 2 II.

Petitioners Motion for Leave to File New and Amended Contentions on NRC Staffs Environmental Review Related to Restart of Palisades and Board Disposition............................................................................................................ 3 DISCUSSION.............................................................................................................................. 4 I.

Applicable Legal Standards............................................................................................. 5 A.

Standards for Commission Review.............................................................................. 5 B.

Standards Governing Admissibility for New or Amended Contentions......................... 6 C.

The NRC Staffs Environmental Review for the Restart of Palisades........................... 6 II.

The Board Correctly Held that the Petitioners Failed to Present at Least One Admissible Contention Pursuant to 10 C.F.R. § 2.309(f)(1)...................................... 9 A.

The Petitioners Do Not Identify Any Error of Law or Abuse of Discretion in the Boards Denial of Amended Contention 2........................................................ 10 B.

The Petitioners Do Not Identify Any Error of Law or Abuse of Discretion in the Boards Denial of Amended Contention 4........................................................13 C.

The Petitioners Do Not Identify Any Error of Law or Abuse of Discretion in the Boards Denial of Amended Contention 5........................................................15 D.

The Petitioners Do Not Identify Any Error of Law or Abuse of Discretion in the Boards Denial of Amended Contention 6........................................................20 E.

The Petitioners Do Not Identify Any Error of Law or Abuse of Discretion in the Boards Denial of New Contention 8................................................................23 CONCLUSION..........................................................................................................................25

ii TABLE OF AUTHORITIES JUDICIAL DECISIONS Backcountry Against Dumps v. Chu, 215 F.Supp.3d 966 (S.D. Cal. 2015)............................... 16 Beyond Nuclear v. U.S. Nuclear Regulatory Commission, 704 F.3d 12 (1st Cir. 2013)..............10 Citizens Against Burlington v. Busey, 938 F.2d 190 (D.C. Cir. 1991)........................................17 City of Grapevine v. U.S. Dept of Transp., 17 F.3d 1502 (D.C. Cir. 1994)................................17 City of New York v. Department of Transportation, 715 F.2d 732 (2d. Cir. 1983)......................16 Energy Law and Policy Center (ELPC) v. NRC, 470 F.3d 676 (7th Cir. 2006)...........................17 Greater Yellowstone Coalition v. Flowers, 359 F.3d 1257 (C.A.10 (Wyo., 2004).......................22 Marin Audubon Society v. FAA, 121 F.4th 902 (D.C. Cir. 2024).................................................23 N. Idaho Cmty. Action Network v. U.S. Dept of Transp., 545 F.3d 1147 (9th Cir. 2008)...........22 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989)..........................................16 COMMISSION DECISIONS AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235 (2009)..................................................................................................................................... 8 Calvert Cliffs Nuclear Project, LLC and UniStar Nuclear Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-09-20, 70 NRC 911 (2009).......................... 5 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3),

CLI-05-24, 62 NRC 551 (2005)............................................................................................... 7 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc.

(Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC 704 (2012)............................................ 5 Entergy Nuclear Operations, Inc. (Indian Point, Unit 2) CLI-16-5, 83 NRC 131 (2016)............ 6, 9 Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2),

CLI-13-7, 78 NRC 199 (2013)................................................................................................. 7 Exelon Generation Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-19-6, 89 NRC 465 (2019)................................................................................................. 7 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 6 and 7),

CLI-17-12, 86 NRC 215 (2017)...................................................................................... passim Holtec Decommissioning International, LLC, Holtec Palisades, LLC, and Palisades Energy, LLC (Palisades Nuclear Plant), CLI-25-3, 101 NRC 197 (2025)................................................ 8, 11 Hydro Resources, Inc., CLI-01-4, 53 NRC 31 (2001)................................................................17 Interim Storage Partners LLC (WCS Consolidated Interim Storage Facility),

CLI-21-9, 93 NRC 244 (2021)................................................................................................. 5 International Uranium (USA) Corp. (White Mesa Uranium Mill), CLI-01-21, 54 NRC 247 (2001) 6 Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 and 4),

CLI-12-7, 75 NRC 379 (2012)................................................................................................. 5

iii NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1) CLI-12-5, 75 NRC 301 (2012).......10 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-18-4, 87 NRC 89 (2018)......... 8 Nuclear Management Company, LLC (Palisades Nuclear Plant),

CLI-06-17, 63 NRC 727 (2006).................................................................................................11 Progress Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plant, Units 2 and 3),

CLI-10-9, 71 NRC 245 (2010)................................................................................................. 6 Shieldalloy Metallurgical Corp. (License Amendment Request for Decommissioning of the Newfield, New Jersey Facility), CLI-07-20, 65 NRC 499 (2007)..................................... passim Strata Energy, Inc. (Ross In Situ Uranium Recovery Project), CLI-16-13, 83 NRC 566 (2016)... 5 USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451 (2006)......................... 7, 8, 16 ATOMIC SAFETY AND LICENSING APPEAL BOARD Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),

ALAB-855, 24 NRC 792 (1986)..............................................................................................16 Public Service Co. of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2),

ALAB-316, 3 NRC 167 (1976)................................................................................................. 7 Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2),

ALAB-942, 32 NRC 395 (1990)............................................................................................... 6 ATOMIC SAFETY AND LICENSING BOARD Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4),

LBP-19-8, 90 NRC 139 (2019)................................................................................................ 6 Florida Power & Light Co. (Turkey Point Units 6 and 7), LBP-17-6, 86 NRC 37 (2017).............. 6 Holtec Decommissioning International, LLC, and Holtec Palisades, LLC (Palisades Nuclear Plant), LBP-25-4, 101 NRC 133 (2025)................................... 3, 11, 13, 14 Holtec Decommissioning International, LLC, and Holtec Palisades, LLC (Palisades Nuclear Plant), LBP-25-5, 101 NRC __ (Jun. 20, 2025)................................ passim Holtec Palisades, LLC (Palisades Nuclear Plant), LBP-25-06, 102 NRC __ (Aug. 5, 2025)......10 Nuclear Management Company, LLC (Palisades Nuclear Plant), LBP-06-10, 63 NRC 314 (2006)....................................................................................................................................11 Southern Nuclear Operating Co., Inc. (Vogtle Electric Generating Plant, Unit 3),

LBP-20-8, 92 NRC 23 (2020).................................................................................................. 7 STATUTES National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq.............................. passim REGULATIONS 10 C.F.R. § 2.309(c)................................................................................................................ 4, 6 10 C.F.R. § 2.309(f)(1)...................................................................................................... passim 10 C.F.R. § 2.309(f)(2)............................................................................................................ 6, 7 10 C.F.R. § 2.311....................................................................................................................... 5

iv 10 C.F.R. § 2.335............................................................................................................ 7, 11, 14 10 C.F.R. § 2.341.............................................................................................................. 1, 5, 24 10 C.F.R. § 50.12......................................................................................................................11 10 C.F.R. § 50.59................................................................................................................ 13, 14 10 C.F.R. § 50.90......................................................................................................................11 10 C.F.R. § 50.92......................................................................................................................11 10 C.F.R. § 51.10(a)(2).............................................................................................................24 10 C.F.R. § 51.14....................................................................................................................... 9 10 C.F.R. § 51.30(a)(1)(ii).........................................................................................................22 10 C.F.R. pt. 51, app. A.1.(b)....................................................................................................24 FEDERAL REGISTER NOTICES Changes to Adjudicatory Process, 69 Fed. Reg. 2182 (Jan. 14, 2004) (final rule)...................... 7 Criteria To Return Retired Nuclear Power Reactors to Operations, 86 Fed. Reg. 24,362 (May 6, 2021).................................................................................................................... 8, 11 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 Holtec Decommissioning International, LLC and Holtec Palisades, LLC; Palisades Nuclear Plant; Environmental Assessment and Finding of No Significant Impact, 90 Fed. Reg. 23,071 (May 30, 2025).................................................................................. 2, 3 Holtec Decommissioning International, LLC, and Holtec Palisades, LLC; Palisades Nuclear Plant; Notice of Intent To Conduct Scoping Process and Prepare an Environmental Assessment; 89 Fed. Reg. 53,659 (June 27, 2024)............................................................. 2, 9 Nuclear Energy Institute; Denial of Petition for Rulemaking, 68 Fed. Reg. 55,905 (Sept. 29, 2003) (Denial of Petition for Rulemaking)................................................................... 16, 18, 19 Rules of Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, 54 Fed. Reg. 33,168 (Aug. 11, 1989)......................................................................10 MISCELLANEOUS Environmental Considerations Associated with Micro-reactors, Interim Staff Guidance, Appendix A (Nov. 27, 2020) (ML20252A076) (COL-ISG-029)................................................24 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) (ML24353A157).......................................................................................... passim Final Environmental Assessment and Draft Finding of No Significant Impact for the Palisades Nuclear Plant Reauthorization of Power Operations Project (May 2025)

(ML25111A031)............................................................................................................... 2, 8, 9 Fed. R. Civ. P. 12(b)(6).............................................................................................................10 Nuclear Management Company, LLC (Palisades Nuclear Plant), DD-07-2, 65 NRC 365 (2007)

..............................................................................................................................................11

August 8, 2025 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of HOLTEC DECOMMISSIONING INTERNATIONAL, LLC, AND HOLTEC PALISADES, LLC (Palisades Nuclear Plant)

Docket No. 50-255-LA-3 NRC STAFF BRIEF IN OPPOSITION TO THE BEYOND NUCLEAR, DONT WASTE MICHIGAN, MICHIGAN SAFE ENERGY FUTURE, THREE MILE ISLAND ALERT, AND NUCLEAR ENERGY INFORMATION SERVICE APPEAL OF THE ATOMIC SAFETY AND LICENSING BOARDS DECISION IN LBP-25-5 INTRODUCTION In accordance with 10 C.F.R. § 2.341(b)(3), the staff of the U.S. Nuclear Regulatory Commission (NRC Staff) files this brief in opposition to the appeal filed by Beyond Nuclear, Dont Waste Michigan, Michigan Safe Energy Future, Three Mile Island Alert, and Nuclear Energy Information Service (collectively, Petitioners) seeking review of the Atomic Safety and Licensing Boards (Board) decision in LBP-25-5. In that decision, the Board found that none of the Petitioners five new and amended contentions regarding the NRC Staffs Draft Environmental Assessment (EA) and Draft Finding of No Significant Impact (FONSI)

(collectively, Draft EA/FONSI) associated with the potential restart of Palisades Nuclear Plant (Palisades) are admissible. The Commission should not review this appeal of LBP-25-5 because Petitioners do not demonstrate that the Board made an error of law or abused its discretion in LBP-25-5.

BACKGROUND I. Palisades Licensing History and NRC Staffs Environmental Review Palisades was licensed for reactor operation until March 24, 2031, under its renewed facility operating license, but ceased power operations on May 20, 2022.1 On July 24, 2025, the NRC Staff issued six licensing and regulatory actions that collectively reauthorize power operations at Palisades, including four license amendment requests, an exemption request, as well as an order approving and conforming amendment reflecting a transfer of operational authority from Holtec Decommissioning International (HDI) to Palisades Energy, LLC.2 The NRC Staff initiated its environmental review by requesting public comment on the proposed actions and holding a public scoping meeting.3 While Holtec concluded that the proposed NRC actions meet the categorical exclusion criteria, the NRC Staff determined to prepare an EA instead of invoking the categorical exclusions.4 The NRC Staff issued the Draft EA/FONSI for public comment on January 31, 2025.5 After consideration of these public comments, the NRC Staff issued its Final EA and Final FONSI on May 30, 2025.6 1 For additional details regarding the licensing history of Palisades and the licensing and regulatory requests related to the potential restart of Palisades, refer to NRC Staffs brief in response to the appeal of LBP-25-4, dated May 20, 2025 (Agencywide Documents Access and Management System (ADAMS)

Accession No. ML25140A972) (NRC Staff Response to Appeal of LBP-25-4).

2 See Notification (July 24, 2025) (ML25205A193).

3 Holtec Decommissioning International, LLC, and Holtec Palisades, LLC; Palisades Nuclear Plant; Notice of Intent To Conduct Scoping Process and Prepare an Environmental Assessment; 89 Fed. Reg. 53,659 (June 27, 2024).

4 Id. at 53,660.

5 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) (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). Based on the NRC Staffs determinations in the Draft EA that the environmental impacts of the proposed actions would be NOT SIGNIFICANT for each potentially affected resource area, the NRC Staff issued preliminary determinations that the proposed Federal actions would not significantly affect the quality of the human environment, it will not prepare an environmental impact statement, and a draft FONSI appeared warranted. Id. at 8722.

6 Final Environmental Assessment and Draft Finding of No Significant Impact for the Palisades Nuclear Plant Reauthorization of Power Operations Project (May 2025) (ML25111A031) (Final EA/FONSI);

Holtec Decommissioning International, LLC and Holtec Palisades, LLC; Palisades Nuclear Plant; II. Petitioners Motion for Leave to File New and Amended Contentions on NRC Staffs Environmental Review Related to Restart of Palisades and Board Disposition As relevant here,7 on October 7, 2024, Petitioners submitted a petition to intervene (as resubmitted on the correct docket on October 10, 2024) triggering this proceeding.8 On March 3, 2025, Petitioners timely filed a motion for leave to file five proposed new and amended contentions challenging the NRC Staffs Draft EA/FONSI.9 The NRC Staff and Applicant filed their answers on March 28, 2025, and the Petitioners filed their reply on April 4, 2025.10 On March 31, 2025, the Board issued a decision in LBP-25-4 holding that while all of the five Petitioners had demonstrated standing, they did not propose an admissible contention and denied the initial petition.11 On April 25, 2025, Petitioners filed an appeal of LBP-25-4, to which the NRC Staff and the Applicant filed their responses on May 20, 2025, and is presently under consideration by the Commission.12 Environmental Assessment and Finding of No Significant Impact, 90 Fed. Reg. 23,071 (May 30, 2025).

7 A separate hearing request was filed on the Amendments Notice by a group of individuals that the Board referred to collectively as Joint Petitioners. See Holtec Decommissioning International, LLC, and Holtec Palisades, LLC (Palisades Nuclear Plant), LBP-25-4, 101 NRC 133, 140 (2025). The Board denied Joint Petitioners Hearing Petition, but Joint Petitioners did not appeal the Boards decision or file new and amended contentions. See also Memorandum from Carrie M. Safford to the Board and Participants, Corrected Notice Pertaining to Memorandum and Order Dated March 31, 2025, Ruling on Intervention Petitions (LBP-25-4), (Aug. 6, 2025) (ML25218A066) (declining to review the Boards decision with respect to Joint Petitioners contentions).

8 See Petition to Intervene and Request for Adjudicatory Hearing by Beyond Nuclear, Dont Waste Michigan, Michigan Safe Energy Future, Three Mile Island Alert and Nuclear Energy Information Service (Oct. 10, 2024) (ML24284A364) (Initial Hearing Request).

9 Petitioning Organizations Motion to File Amended and New Contentions (Mar. 3, 2025) (ML25062A308)

(Motion); Petitioning Organizations Amended and New Contentions Based on Draft Environmental Assessment/Finding of No Significant Impact for Palisades Nuclear Power Plant (Mar. 3, 2025)

(ML25062A309) (Amended and New Contentions).

10 NRC Staff Answer to Petitioning Organizations Motion to File Amended and New Contentions Based on Draft Environmental Assessment/Finding of No Significant Impact in the Palisades Restart Amendment Proceeding (Mar. 28, 2025) (ML25087A218) (NRC Staff Answer to Amended and New Contentions); Applicants Answer Opposing Beyond Nuclear Et Al.s New and Amended Contentions (Mar. 28, 2025) (ML25087A258); Petitioning Organizations Reply in Support of Amended and New Contentions (Apr. 4, 2025) (ML25094A211).

11 See LBP-25-4, 101 NRC at 186.

12 Notice and Brief of Appeal of LBP-25-4 by Beyond Nuclear, Dont Waste Michigan, Michigan Safe The Board held a prehearing conference on the new and amended contentions on May 15, 2025.13 On June 20, 2025, the Board issued its decision in LBP-25-5 wherein it denied Petitioners motion for leave to file new and amended contentions and terminated the proceeding.14 While the Petitioners new and amended contentions must also meet the agencys timeliness requirements,15 the Board did not decide on this issue because it concluded that the contentions do not satisfy the agencys admissibility requirements.16 On July 15, 2025, Petitioners filed the instant appeal of LBP-25-5.17 DISCUSSION In LBP-25-5, the Board correctly rejected Petitioners new and amended Contentions 2, 4, 5, 6, and 8 for failing to satisfy the Commissions contention admissibility requirements.18 On appeal, the Petitioners challenge the Boards determination that the new and amended contentions were inadmissible, but do not demonstrate that the Board erred or abused its discretion by denying the contentions. The following discussion presents a summary of (A) the legal principles applicable to Commission review of LBP-25-5, (B) the admissibility standards for new and amended contentions, and (C) the NRC Staffs environmental review. Second, the Energy Future, Three Mile Island Alert and Nuclear Energy Information Service, (Apr. 25, 2025)

(ML25115A265) (Appeal of LBP-25-4); NRC Staff Brief in Opposition to the Beyond Nuclear, Dont Waste Michigan, Michigan Safe Energy Future, Three Mile Island Alert, and Nuclear Energy Information Service Appeal of the Atomic Safety and Licensing Boards Decision in LBP-25-4, (May 20, 2025)

(ML25140A972) (NRC Staff Response to Appeal of LBP-25-4); Holtec Decommissioning International, LLC and Holtec Palisades, LLC Brief in Opposition to Appeal, (May 20, 2025) (ML25140A977).

13 Transcript of Palisades Nuclear Plant Oral Argument Hearing (May 15, 2025) (ML25143A151).

14 See Holtec Decommissioning International, LLC, and Holtec Palisades, LLC (Palisades Nuclear Plant),

LBP-25-5, 101 NRC __, __ (Jun. 20, 2025) (slip op. at 23).

15 10 C.F.R. § 2.309(c)(1).

16 LBP-25-5, 101 NRC at __ (slip op. at 5).

17 Notice of Appeal of ASLB Decision LBP-25-5 by Beyond Nuclear, Dont Waste Michigan, Michigan Safe Energy Future, Three Mile Island Alert and Nuclear Energy Information Service and Brief in Support of Appeal (July 15, 2025) (Appeal).

18 See LBP-25-5, 101 NRC at __ (slip op. at 6-23).

NRC Staff shows that the Board correctly held that the Petitioners proposed new and amended contentions are inadmissible. Therefore, the Commission should not review LBP-25-5.

I. Applicable Legal Standards A. Standards for Commission Review An appeal not associated with an initial hearing request, including an appeal related to new and amended contentions filed after an initial hearing request, is treated as a petition for discretionary review under 10 C.F.R. § 2.341 and not as an appeal as of right under 10 C.F.R.

§ 2.311.19 However, with respect to contention admissibility rulings, the standard for review of both types of appeal is the same: the Commission will disturb a licensing boards ruling on contention admissibility only if the board had committed an error of law or abused its discretion,20 and leaves to the boards judgment a determination whether a proposed contention has a sufficient factual basis to be admitted for hearing.21 Therefore, an appeal from a boards threshold determination on contention admissibility that does not point to an error of law or abuse of discretion by the board, but simply restates the appellants prior positions and its general disagreement with the boards decision, with or without additional support, will not be granted.22 In addition, a petitioner may not, for the first time on appeal, present[] arguments and 19 Interim Storage Partners LLC (WCS Consolidated Interim Storage Facility), CLI-21-9, 93 NRC 244, 246 (2021) (citing Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 and 4), CLI-12-7, 75 NRC 379, 385 (2012)).

20 WCS, CLI-21-9, 93 NRC at 246 ([Appellant] has not shown that the Board erred or abused its discretion and therefore has not raised a substantial question warranting review and [Appellants claim]

shows no error in the Boards application of our hearing standards. We therefore find it without merit.);

Comanche Peak, CLI-12-7, 75 NRC at 386; see also, Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC 704, 710 (2012); see also Calvert Cliffs Nuclear Project, LLC and UniStar Nuclear Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-09-20, 70 NRC 911, 914 (2009) (We give substantial deference to our boards determinations on threshold issues, such as standing and contention admissibility, and we will affirm decisions on the admissibility of contentions where the appellant points to no error of law or abuse of discretion.) (internal quotation marks omitted).

21 Strata Energy, Inc. (Ross In Situ Uranium Recovery Project), CLI-16-13, 83 NRC 566, 574 (2016).

22 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 6 and 7), CLI-17-12, 86 NRC 215, 219 (2017).

evidence never provided to the Board.23 And an argument previously made before the presiding officer but not discussed on appeal is considered abandoned.24 B. Standards Governing Admissibility for New or Amended Contentions Pursuant to 10 C.F.R. § 2.309(c), new and amended contentions will not be entertained absent a determination by the presiding officer that a participant has demonstrated good cause.25 Good cause is demonstrated by showing that:

i) The information upon which the filing is based was not previously available; ii) The information upon which the filing is based is materially different from information previously available;26 and iii) The filing has been submitted in a timely fashion based on the availability of the subsequent information.27 In addition to the good cause requirement, for a new or amended contention to be admissible, the proffered contention must meet the NRCs contention admissibility requirements in 10 C.F.R. § 2.309(f)(1). Failure to satisfy any of the six pleading requirements renders a contention inadmissible.28 Further, [c]ontentions must be based on documents or other information available at the time the petition is to be filed, such as the application, supporting safety analysis report, environmental report or other supporting document filed by an applicant 23 Shieldalloy Metallurgical Corp. (License Amendment Request for Decommissioning of the Newfield, New Jersey Facility), CLI-07-20, 65 NRC 499, 503-05 (2007).

24 Progress Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plant, Units 2 and 3), CLI-10-9, 71 NRC 245, 257 (2010) (citing International Uranium (USA) Corp. (White Mesa Uranium Mill), CLI-01-21, 54 NRC 247, 253 (2001); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2),

ALAB-942, 32 NRC 395, 414 (1990)).

25 See also 10 C.F.R. § 2.309(f)(2) (Participants may file new or amended environmental contentions after the deadline in paragraph (b) of this section (e.g., based on a draft or final NRC environmental impact statement, environmental assessment, or any supplements to these documents) if the contention complies with the requirements in paragraph (c) of this section.).

26 See Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), LBP-19-8, 90 NRC 139, 149 n.13 (2019) (The term materially describes the type or degree of difference between the new information and previously available information, and it is synonymous with, for example, significantly, considerably, or importantly.) (quoting Florida Power & Light Co. (Turkey Point Units 6 and 7), LBP-17-6, 86 NRC 37, 48 (2017), affd on other grounds, CLI-17-12, 86 NRC 215).

27 10 C.F.R. § 2.309(c).

28 Entergy Nuclear Operations, Inc. (Indian Point, Unit 2) CLI-16-5, 83 NRC 131, 136 (2016).

or licensee, or otherwise available to a petitioner.29 The § 2.309(f)(1) requirements are intended to focus litigation on concrete issues and result in a clearer and more focused record for decision.30 The Commission has stated that it should not have to expend resources to support the hearing process unless there is an issue that is appropriate for, and susceptible to, resolution in an NRC hearing.31 The NRCs contention admissibility requirements are strict by design and intended to ensure that adjudicatory proceedings are triggered only by substantive safety or environmental issues, rooted in a reasonably specific factual or legal basis and to screen out ill-defined, speculative, or otherwise unsupported claims.32 Further, a proposed contention must be rejected if it raises issues beyond the scope of the proceeding as established by the Commissions hearing notice.33 Moreover, 10 C.F.R. § 2.335 forbids challenges to NRC regulations in adjudicatory proceedings, absent a petition for waiver or exception (accompanied by affidavit) that demonstrates prima facie that special circumstances with respect to the subject matter of the particular proceeding are such that the application of the rule or regulation (or a provision of it) would not serve the purposes for which the rule or regulation was adopted.34 Presiding officers are expected to examine cited materials to verify that they do, in fact, support a contention.35 Also, a document cited by a petitioner as the basis for a contention is 29 10 C.F.R. § 2.309(f)(2).

30 Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2202 (Jan. 14, 2004) (final rule).

31 Id.

32 Exelon Generation Co., LLC (Oyster Creek Nuclear Generating Station), CLI-19-6, 89 NRC 465, 471-72 (2019) (internal quotation marks omitted).

33 Southern Nuclear Operating Co., Inc. (Vogtle Electric Generating Plant, Unit 3), LBP-20-8, 92 NRC 23, 46 (2020) (citing Public Service Co. of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 NRC 167, 170-71 (1976)).

34 10 C.F.R. § 2.335 (a)-(c). Whether special circumstances are present is assessed under the Millstone factors. Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), CLI-13-7, 78 NRC 199, 205 (2013) (citing Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3),

CLI-05-24, 62 NRC 551, 560 (2005)).

35 USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 457 (2006).

subject to scrutiny both for what it does and does not show.36 A presiding officer may view a petitioners supporting information in a light favorable to the petitioner,37 but the presiding officer is not to search through pleadings or other materials to uncover arguments and support never advanced by the petitioners themselves[.]38 C. The NRC Staffs Environmental Review for the Restart of Palisades The NRC Staffs consideration of all restart-related requests is governed by the existing regulatory framework and Commission-established policy on the reauthorization of reactor operations for plants in decommissioning. In denying a petition for rulemaking, the Commission stated that the NRC may consider requests from licensees to resume operations under the existing regulatory framework.39 The NRC Staff has concluded, generally, that a facility licensee in decommissioning may apply to use the license amendment, transfer, and exemption processes, as applicable, to seek approval for the actions necessary to authorize the restart of a reactor in decommissioning.40 To address its obligations under the National Environmental Policy Act (NEPA), the NRC Staff prepared an EA and FONSI that cover the license amendment requests, license transfer request, and exemption request related to the reauthorization of power operations at Palisades.41 The NRC Staffs environmental review assessed whether the NRCs approval of 36 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-18-4, 87 NRC 89, 107 and n.131 (2018).

37 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 260 (2009).

38 USEC, CLI-06-10, 63 NRC at 457.

39Criteria To Return Retired Nuclear Power Reactors to Operations, 86 Fed. Reg. 24,362, 24,363 (May 6, 2021) (denying a petition for rulemaking) (2021 PRM Denial); Holtec Decommissioning International, LLC, Holtec Palisades, LLC, and Palisades Energy, LLC (Palisades Nuclear Plant), CLI-25-3, 101 NRC 197, 210 (2025).

40 For additional information, see NRC Staff Response to Appeal of LBP-25-4, at 11-13.

41 See Draft EA/FONSI at § 1.1.1 Proposed Actions of the NRC; See also Final EA/FONSI at § 1.1.1.

these actions would have a significant environmental impact.42 As stated in the NRC Staffs Notice of Intent to Prepare EA:

To inform its environmental review, the NRC Staff is considering a number of sources, including the previous NRC environmental review for [Palisades] license renewal that is documented in the October 2006 Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 27, Regarding Palisades Nuclear PlantFinal Report (hereafter [2006 SEIS]). The [2006 SEIS]

addresses the environmental impacts of continued operation during the license renewal period, which is the same operating period applicable to HDIs requests for reauthorization of power operations. The NRC Staff is also considering the environmental information that HDI submitted in Enclosure 2, Environmental New and Significant Review Proposed Resumption of Power Operations Palisades Nuclear Plant, of the September 28, 2023, exemption request. As stated in the exemption request, Enclosure 2 documents HDIs environmental review of potentially new and significant information, and environmental issues not addressed in the [2006 SEIS].43 Holtecs new and significant environmental review found in Enclosure 2 of the exemption request was submitted to aid the NRC in its environmental review, and therefore, meets the definition of Environmental Report in 10 C.F.R. § 51.14.44 II. The Board Correctly Held that the Petitioners Failed to Present at Least One Admissible Contention Pursuant to 10 C.F.R. § 2.309(f)(1)

At the outset of their appeal, Petitioners argue that the Board misapplied the contention admissibility standard and erred in requiring Petitioners to present enough evidence to prove the merits of their contentions.45 There is, however, no basis for these assertions. It is well-established that the Commissions contention admissibility rules are strict by design.46 Moreover, Petitioners do not explain how the Board erred or misapplied the contention 42 See Draft EA/FONSI at § 1.3.3 Significance Determination; see also Final EA/FONSI at § 1.3.3.

43 Notice of Intent to Prepare EA and Conduct Scoping, 89 Fed. Reg. at 53,660.

44 Letter from Jean A. Fleming, Holtec International, to NRC Document Control Desk, Request for Exemption from Certain Termination of License Requirements of 10 CFR 50.82, Enclosure 2 (Sept. 28, 2023) (ML23271A140) (Environmental Report).

45 Appeal at 7-11.

46 See Indian Point, CLI-16-5, 83 NRC at 136 (internal citations omitted).

admissibility standards in relation to any of the five new and amended contentions. Petitioners arguments are effectively a backdoor challenge to the NRCs hearing procedures and fail to demonstrate any legal error or abuse of discretion by the Board.47 Additionally, in their brief on appeal, the Petitioners contend that the Board erred in rejecting their five new and amended contentions, but provide no facts or law to support their arguments.48 Instead, the Petitioners repeat arguments from their hearing petition, mischaracterize the Boards ruling, and raise new unavailing arguments for the first time on appeal. As more fully set forth below, the NRC Staff submits that the Board correctly rejected all five of the new and amended contentions, and the Petitioners have not shown that the Board committed any error of law or abuse of discretion in doing so. Therefore, the Commission should not review LBP-25-5.

A. The Petitioners Do Not Identify Any Error of Law or Abuse of Discretion in the Boards Denial of Amended Contention 2 In Amended Contention 2, the Petitioners re-invigorated their assertion in Contention 2 that because restarting Palisades is a major regulatory decision, it was improper for the NRC to initiate its environmental review with an EA instead of an EIS.49 Further, Petitioners asserted 47 See Beyond Nuclear v. U.S. Nuclear Regulatory Commission, 704 F.3d 12, 20-21 (1st Cir. 2013) (citing Rules of Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,170 (Aug. 11, 1989)) (characterizing Beyond Nuclears appeal of a Commission decision to deny its contention as a backdoor challenge to the 1989 rule revising the agencys hearing procedures and holding that the Commissions decision was not arbitrary or capricious), affg, NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1) CLI-12-5, 75 NRC 301, 337-49 (2012). See also NRC Staff Response to Appeal of LBP-25-4, at 14-15 (noting, in response to similar arguments, that Petitioners erroneously suggested that the contention admissibility standards were intended to parallel the standard for dismissing a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure); Holtec Palisades, LLC (Palisades Nuclear Plant), LBP-25-06, 102 NRC __, __ (Aug. 5, 2025) (slip op. at 9-10) (dismissing Petitioners similar arguments in a separate proceeding).

48 Appeal at 14-31.

49 Amended and New Contentions at 8 (Based on all of the foregoing facts, the decision by the NRC to prepare an EA and forego the preparation of an EIS violates NEPA and is arbitrary, capricious, unreasonable, and an abuse of discretion.) cf. Initial Hearing Request at 40-45 (An Environmental Impact Statement (EIS), not an Environmental Assessment (EA), must be compiled for the proposed restart of the Palisades reactor. An EIS is required because of the major regulatory decision sought by Holtec.).

that a review of the EA and FONSI clearly shows that there are significant environmental impacts that require the preparation of an EIS.50 Petitioners also resurrected decades-old objections to the 2006 Palisades SEIS that have already been considered and dispositioned by the NRC.51 Finally, Petitioners asserted that there were deficiencies in the Draft EA regarding its discussions of construction activities and climate change.52 In LBP-25-5 the Board correctly concluded that Petitioners restated their prior challenge to Commission policy and regulations that the existing regulatory framework may be used to restart a reactor in decommissioning status.53 The Board appropriately recognized that the NRC Staff conducted an independent review of the environmental impacts of restart for each potentially affected environmental resource area.54 Finally, the Board reasonably determined that Petitioners overlooked analyses in the Draft EA that are directly relevant to their specific environmental concerns and fail to demonstrate a genuine dispute with the NRC Staffs analysis.55 On appeal, Petitioners make various assertions that misrepresent the Boards decision and repeat their prior arguments but do not demonstrate that the Board made an error of law or abused its discretion. First, Petitioners assert that the Board excluded Petitioners challenge to Commission Policy and regulations based on an inspection manual chapter.56 However, the 50 Amended and New Contentions at 4.

51 Id. at 4-6; See NRC Staff Answer to Amended and New Contentions at 19-22 (citing Nuclear Management Company, LLC (Palisades Nuclear Plant), LBP-06-10, 63 NRC 314, 359 (2006), affd Nuclear Management Company, LLC (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727, 733-34 (2006);

Nuclear Management Company, LLC (Palisades Nuclear Plant), DD-07-2, 65 NRC 365, 368-69 (2007)).

52 Id. at 6-8.

53 LBP-25-5, 101 NRC at __ (slip op. at 8-9) (citing LBP-25-4, 101 NRC at 178-79; 10 C.F.R. §§ 2.309(f)(1)(iii), 2.335; Palisades, CLI-25-3, 101 NRC at 209-10). In LBP-25-4, the Board excluded this challenge based on the Commissions policy statement. See LBP-25-4, 101 NRC at 179 n. 274 (citing 2021 PRM Denial, 86 Fed. Reg. at 24,362; 10 C.F.R. §§ 50.12, 50.90, 50.92).

54 LBP-25-5, 101 NRC at __ (slip op. at 9) (citing Draft EA at 4-1).

55 LBP-25-5, 101 NRC at __ (slip op. at 9-11) (citing 10 C.F.R. § 2.309(f)(1)(vi)).

56 Appeal at 14-15.

Board excluded Petitioners challenge based on the Commissions policy statement that the existing regulatory framework may be used to restart a reactor in decommissioning status.57 The Board did not mention NRC Inspection Manual Chapter 2562 in its decision.58 Petitioners incorrect assertion that the Board rejected their challenge based on the Inspection Manual Chapter does not demonstrate that the Board made an error of law or abused its discretion.

Further on appeal, Petitioners primarily seek to relitigate their disputes with the 2006 SEIS, which the Board appropriately rejected because Petitioners did not challenge the analyses in the Draft EA directly relevant to their arguments.59 Petitioners recast the Boards rejection of Petitioners earthquake and radioactive waste arguments, which are resurrected challenges to the 2006 SEIS, as only out of scope.60 However, this is an erroneous reading of the Boards decision. The Board rejected Petitioners earthquake and radioactive waste arguments because Petitioners do not show a genuine dispute exists with the Draft EA.61 Therefore, Petitioners do not demonstrate that the Board erred or abused its discretion.

Finally, Petitioners restate their challenge to the environmental baseline used in the Draft EA but do not demonstrate that the Board made an error of law or abused its discretion when the Board found that there was no genuine dispute.62 Petitioners claim that the Board misunderstood their argument that any document or sources that predate the Palisades decommissioning cannot be referenced in the environmental review of the Palisades restart 57 LBP-25-5, 101 NRC at __ (slip op. at 9 n.35).

58 See generally LBP-25-5, 101 NRC __.

59 LBP-25-5, 101 NRC at __ (slip op. at 9-10) (citing Draft EA at 3-63, G-1; 3-64 to -65) (the Board further noted that Petitioners did not explain the relevance of NRC safety regulations relate to the NRC Staffs NEPA analysis).

60 Appeal at 16 (citing LBP-25-5, 101 NRC at __(slip op. at 9 n.37) (The Board held that Petitioners arguments failed to satisfy 10 C.F.R. § 2.309(f)(1)(v) and simply noted that Petitioners desire to litigate the contents of the 2006 SEIS, instead of challenging the Draft EA itself, are outside the scope of this proceeding).

61 LBP-25-5, 101 NRC at __ (slip op. at 9-10).

62 Appeal at 17; LBP-25-5, 101 NRC at __ (slip op. at 10).

because the baseline has changed.63 But the Board correctly understood Petitioners arguments and rejected them because Petitioners did not demonstrate a deficiency in the environmental baseline used for the analyses the Draft EA.64 Petitioners unsupported assertions on appeal that the environmental baseline in the Draft EA is a façade without any reference to a specific deficiency in the Boards decision or the analyses in the Draft EA purportedly using an incorrect baseline does not demonstrate that the Board made any error of law or abused its discretion.

Therefore, the Commission should not review the Boards denial of Amended Contention 2.

B. The Petitioners Do Not Identify Any Error of Law or Abuse of Discretion in the Boards Denial of Amended Contention 4 In Amended Contention 4, the Petitioners re-invigorated Contention 4 by reproduc[ing]

the entirety of their original Contention 4 but [they] have also inserted new supporting evidence from the NRC Staffs Environmental Assessment.65 Petitioners amended the portion of Contention 4 that challenged the Applicants proposed use of 10 C.F.R. § 50.59 to reinstate UFSAR Revision 35 using NRC Staffs discussion of climate change in the Draft EA.66 In LBP-25-4, currently on appeal to the Commission, the Board found that Petitioners 10 C.F.R.

§ 50.59 arguments were based on a misinterpretation of that section and otherwise amount to an impermissible challenge to a regulation.67 Therefore, the Board in LBP-25-4 rejected this 63 Appeal at 17.

64 LBP-25-5, 101 NRC at __ (slip op. at 9-10) (Rather, the Staff separately analyzed the impacts of restart and concluded that the impacts would be not significant for each potentially affected environmental resource area [t]he Draft EA provides that the baseline is the current decommissioning state at Palisades prior to implementing any of the activities related to the preparation for the resumption of power operations.) (internal quotations omitted).

65 Amended and New Contentions at 8 n.17. The Boards denial of the admission of Contention 4 in LBP-25-4 has been appealed by Petitioners and is presently under consideration by the Commission.

See Appeal of LBP-25-4 at 30-32.

66 Amended and New Contentions at 15-24.

67 LBP-25-4, 101 NRC at 183-84.

portion of original Contention 2 that challenged the Applicants proposed use of 10 C.F.R.

§ 50.59 pursuant to 10 C.F.R. § 2.335.68 In LBP-25-5, the Board appropriately rejected Amended Contention 4 by first noting that it is substantively, and substantially similar to Petitioners original Contention 4, which the Board found to be inadmissible as an improper challenge to Commission policy and regulations in LBP-25-4, and then found that Petitioners have not provided anything in Amended Contention 4 that would alter that conclusion.69 The Board incorporated its previous discussion and analysis of Contention 4 from LBP-25-4 in full and denied the admission of Amended Contention 4.70 The Board further noted that Petitioners appear to challenge the NRCs climate change discussion in the Draft EA and that the climate change discussion in the Draft EA implicates Atomic Energy Act safety considerations, but found these claims to be vague, and not well supported and therefore did not satisfy 10 C.F.R. § 2.309(f)(1)(v), (vi).71 On appeal, the Petitioners make various assertions that misrepresent the record but do not demonstrate that the Board made an error of law or abused its discretion. Confusingly, Petitioners assert that their original Contention 4 challenged Holtecs environmental report, which it did not.72 Petitioners then incorrectly assert that the Board did not address their argument that the EA must contain a discussion of the safety impacts of climate change on Palisades.73 Contrary to the Petitioners argument, the Board found Petitioners disjointed challenge to the climate change discussion in the Draft EA through Amended Contention 4 to be neither clear nor well supported and rejected it for failing to meet 10 C.F.R. § 2.309(f)(1)(v) and 68 LBP-25-4, 101 NRC at 184.

69 LBP-25-5, 101 NRC at __ (slip op. at 11-12 & n.58) (citing LBP-25-4, 101 NRC at 182-84).

70 LBP-25-5, 101 NRC at __ (slip op. at 12-13).

71 LBP-25-5, 101 NRC at __ (slip op. at 13 n.60).

72 Compare Appeal at 17, with Initial Hearing Request at 48-63.

73 Appeal at 17-18.

(vi).74 The Board appropriately addressed and rejected Petitioners arguments and Petitioners do not now demonstrate that the Board made any error of law or abused its discretion by rejecting Amended Contention 4. Therefore, the Commission should not review the Boards denial of Amended Contention 4.

C. The Petitioners Do Not Identify Any Error of Law or Abuse of Discretion in the Boards Denial of Amended Contention 5 In Amended Contention 5, Petitioners asserted that the purpose and need statement in the Draft EA is deficient because: it is virtually identical to Holtecs purpose and need statement; it is narrowly drawn in that it leaves only one alternative to satisfy the purpose and need; it relies on Michigans recent clean energy standards; the Staff did not consider the need or demand for electricity from Palisades; and the Staff excludes consideration of incremental construction of alternative energy sources, energy conservation, and the timing need for implementation.75 In LBP-25-5, the Board correctly held that Amended Contention 5 does not satisfy the contention admissibility requirements in 10 C.F.R. § 2.309(f)(iii), (iv), and (v).76 The Board appropriately determined that challenges to Michigan law and policy and the Department of Energys purpose and need statement fall outside the scope of this proceeding.77 Moreover, the Board correctly concluded that the Petitioners remaining arguments are inadmissible because Petitioners rely on conclusory assertions and do not demonstrate the materiality of their assertions with respect to findings the NRC Staff must make under NEPA.78 On appeal, Petitioners attempt to bolster Amended Contention 5 with new arguments and support from case law not raised before the Board. For example, they assert that their 74 LBP-25-5, 101 NRC at __ (slip op. at 13 n.60) (citing Amended and New Contentions at 23-24).

75 Amended and New Contentions at 29-30. See also Motion at 5-6.

76 LBP-25-5, 101 NRC at __ (slip op. at 15-17).

77 Id. at __ (slip op. at 15).

78 Id. at __ (slip op. at 15-18).

arguments are not conclusory when viewed in light of relevant case law, and argue that the NRC Staffs adoption of the Applicants purpose and need statement was unreasonable because the Staff failed to take the necessary hard look at environmental consequences under NEPA, artificially narrowed its consideration of alternatives, and lacked a rational foundation for its purpose and need statement.79 Petitioners further argue that the NRC Staff demonstrated no expertise regarding factual determinations, which forestall[s] consideration of alternative actions, and compromised its objectivity.80 However, Petitioners do not explain how the facts or holdings underlying the cases they cite demonstrate that the Board erred or abused its discretion in finding that Petitioners lacked adequate support for their claims, and instead attempt to use these new cases to cure the deficiencies outlined by the Board with regard to Amended Contention 5. Accordingly, the Commission should not entertain these new arguments raised for the first time on appeal.81 Further, the Board correctly determined that the Petitioners overlooked well-established federal case law and Commission case law and policy that the NRC will, give substantial weight to a properly-supported statement of purpose and need by an applicant... or sponsor of a proposed project in determining the scope of alternatives to be considered by the NRC.82 On appeal, Petitioners assert that the Board overlooked language from the Commissions policy statement that the Commission will ordinarily give substantially weight... and that the term 79 Appeal at 19-20 (citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989)

(internal citations omitted); City of New York v. Department of Transportation, 715 F.2d 732, 743 (2d. Cir. 1983); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-855, 24 NRC 792, 795 (1986)).

80 Appeal at 20, 23 (citing Backcountry Against Dumps v. Chu, 215 F.Supp.3d 966, 978 (S.D. Cal. 2015)).

81 See Shieldalloy, CLI-07-20, 65 NRC at 503-05 (quoting USEC, CLI-06-10, 63 NRC at 458) (The purpose of an appeal to the Commission is to point out errors made in the Boards decision, not to attempt to cure deficient contentions by presenting arguments and evidence never provided to the Board.).

82 LBP-25-5, 101 NRC at __ (slip op. at 15) (citing Nuclear Energy Institute; Denial of Petition for Rulemaking, 68 Fed. Reg. 55,905, 55,909 (Sept. 29, 2003) (Denial of Petition for Rulemaking)).

ordinarily ensures deference is not automatic.83 But other than Petitioners conclusory assertions that the Board and NRC Staff impermissibly accorded an unbridled degree of deference to the Applicant,84 Petitioners provide no explanation as to why the Boards application of longstanding federal and Commission precedent was in error, especially here, where the NRC is not the sponsor of this project. 85 On appeal, Petitioners repeat their arguments from Amended Contention 5 that the NRC Staffs purpose and need statement impermissibly narrows the discussion of alternatives and the Staff has exercised no independent judgement before adopting Holtecs purpose and need statement.86 However, Commission case law is clear that an appeal of a contention admissibility ruling that consists of just a [r]ecitation of an appellants prior positions in a proceeding or statement of general disagreement with a decisions result is not sufficient.87 Moreover, Petitioners arguments fail to demonstrate that the Board erred in finding that Petitioners provide no support for their claim that the Staff adopted Applicants purpose and need statement without independent analysis other than pointing to the similarity between the Staffs and Applicants statements.88 And contrary to Petitioners assertions, the NRC Staff independently evaluated the general goals of the project in considering the Applicants purpose and need statement, as demonstrated in the Draft EA.89 83 Appeal at 19 (emphasis added).

84 Appeal at 20.

85 See, e.g., Energy Law and Policy Center (ELPC) v. NRC, 470 F.3d 676, 683-84 (7th Cir. 2006) (citing City of Grapevine v. U.S. Dept of Transp., 17 F.3d 1502, 1506 (D.C. Cir. 1994)); Hydro Resources, Inc.,

CLI-01-4, 53 NRC 31, 55 (2001) (citing Citizens Against Burlington v. Busey, 938 F.2d 190, 197 (D.C. Cir. 1991), cert. denied, 502 U.S. 994 (1991)).

86 Compare Appeal at 18, 20-22 with Amended and New Contentions at 28-29.

87 Turkey Point, CLI-17-12, 86 NRC at 219.

88 LBP-25-5, 101 NRC at __ (slip op. at 15).

89 Draft EA/FONSI at § 1.2.3, Need for the Project.

Additionally, the Board correctly determined that the Petitioners claim that the purpose and need statement is too narrow to allow for the consideration of alternatives to restart Palisades is unsupported and directly contradicted by the four alternatives the Staff considered in its Draft EA.90 While Petitioners acknowledge that the Draft EA considers four alternatives, they mistakenly claim on appeal that all four alternatives presume the restart of nuclear operations at Palisades, at its current site.91 Indeed, only one of the four previously mentioned alternatives-installing system design alternatives-would involve the restart of Palisades.

Regardless, this argument fails to demonstrate any error or abuse of discretion by the Board.

On appeal, Petitioners also challenge the Boards determination that a need for power assessment is not required at the post-construction licensing phase, arguing that this case is unprecedented because it concerns reactivating a decommissioned plant for the first time.92 Not only is this a new argument impermissibly raised for the first time on appeal,93 this argument does not demonstrate that the Board erred in its determination that Petitioners do not point to any specific legal requirement for the Draft EA to consider such information or demonstrate the materiality of their claims to the NRC Staffs review. Indeed, as the Board correctly noted, while need for power must be addressed for actions authorizing the siting and construction of new plants, the Commission has determined that, post construction, any significant environmental impacts from siting and construction already would have occurred, obviating the need to weigh the need for power against the environmental impacts of construction and operation.94 90 LBP-25-5, 101 NRC at __ (slip op. at 15-16) (describing four alternatives described in the Draft EA: (1) the no-action alternative; (2) replacing the Palisades reactor with a new onsite reactor; (3) replacing the Palisades reactor with other power generation technologies either on the Palisades site or offsite; and (4) installing system design alternatives at the current for use with the Palisades reactor).

91 Appeal at 21-22.

92 Id. at 22.

93 Shieldalloy, CLI-07-20, 65 NRC at 503-05.

94 LBP-25-5, 101 NRC at __ (slip op. at 16-17) (citing 2003 PRM Denial, 68 Fed. Reg. at 55,910).

Petitioners further assert the Board overstates their position and that rather than seeking a need for power analysis based on exhaustive quantitative forecast, they seek a minimally factually-grounded one that is objective in evaluating whether restarting Palisades will actually address the purported public energy need.95 But contrary to their assertions, and as the Board properly noted, the Commission has stated even for those licensing actions that do require a need for power assessment, the Commission does not require the type of detailed quantitative analysis that Petitioners asserted in Amended Contention 5 were necessary.96 Additionally, Petitioners mistakenly assert that the Board accepted the NRC Staffs insufficient reliance on vague references to data centers and spikes in demand for electricity.97 The Draft EA makes no mention of any such data centers or spikes in demand for electricity. And the Board only mentioned data centers to summarize Petitioners need for power arguments in Amended Contention 5.98 Moreover, to the extent Petitioners seek to re-argue their claims relying on Chinese artificial intelligence,99 such recitation of prior arguments should not be considered.100 For the reasons discussed above, Petitioners fail to demonstrate that the Board committed any legal error or abused its discretion in denying Amended Contention 5. Therefore, the Commission should not review the Boards denial of Amended Contention 5.

95 Appeal at 22.

96 Compare 2003 PRM Denial, 68 Fed. Reg. at 55,910 (The Commission emphasizes, however, that while a discussion of need for power is required, the Commission is not looking for burdensome attempts by the applicant to precisely identify future market conditions and energy demand....) with Amended and New Contentions at 29-30 (asserting the Draft EA does not consider: the need for regional demand forecasts, power from other sources, energy conservation measures, implementation timing, and energy needs for artificial intelligence).

97 Appeal at 21.

98 LBP-25-5, 101 NRC at __ (slip op. at 14).

99 Appeal at 21 (citing Amended and New Contentions at 29-30).

100 Turkey Point, CLI-17-12, 86 NRC at 219.

D. The Petitioners Do Not Identify Any Error of Law or Abuse of Discretion in the Boards Denial of Amended Contention 6 In Amended Contention 6, Petitioners asserted that the alternatives analysis in the Draft EA is deficient for a number of reasons including that the NRC Staff did not adequately justify rejecting the no-action alternative and the discussion of other alternatives is based on mischaracterizations of nuclear power and unsupported assumptions.101 Petitioners also repeated their arguments from Amended Contention 5 that the Staff defined an unreasonably narrow purpose and need statement and did not provide a sufficient need for power analysis.102 In LBP-25-5, the Board appropriately determined that the claims Petitioners repeated from Amended Contention 5 fail for the same reasons: they lack a legal basis, are based on conclusory assertions, and raise out of scope challenges to Michigan law and policy.103 Further, the Board correctly found Petitioners remaining claims that challenge the NRC Staffs alternatives analysis are inadmissible because they lack specificity, are based on conclusory assertions, and in some cases, are based on a misreading of the Draft EA.104 On appeal, Petitioners repeatedly assert that the Board misapplied case law regarding NEPAs hard look, but they do not actually explain how the Board misapplied this case law.105 Instead, they argue that [b]y failing to provide necessary data-based evidence grounded in factual objectivity, the ASLB, in not admitting Contention 6, permits the NRC Staff to mandate the reopening of Palisades rather than engaging in a reasonable discussion of alternatives.106 Petitioners also dedicate nearly five pages to analyz[ing] the NRC Staffs alternatives analysis 101 Amended and New Contentions at 30-34; Motion at 6-7.

102 Amended and New Contentions at 30-34; Motion at 6-7.

103 LBP-25-5, 101 NRC at __ (slip op. at 17-18).

104 Id. at __ (slip op. at 18-19).

105 Appeal at 23-24, 27-30.

106 Id. at 24.

in detail, demonstrating that [Petitioners] assertions are grounded in an accurate reading of the EA.107 This analysis repeats the bulk of Petitioners original arguments challenging the alternatives analysis in the Draft EA (e.g., raising challenges to the no-action alternatives, lack of a need for power analysis, etc.).108 However, not only are Petitioners convoluted assertions that the Board needed to provide data-based evidence difficult to understand, Commission case law is clear that [r]ecitation of an appellants prior positions in a proceeding or statement of general disagreement with a decisions result is not sufficient on appeal.109 Petitioners also attempt to bolster their arguments in Amended Contention 6 by adding new arguments for the first time on appeal (e.g., asserting lack of comparison of temporary construction impacts to long-term environmental and safety advantages, challenging system design alternatives, etc.).110 And in the one instance in which Petitioners appear to challenge the Boards determination-that a recurring flaw in the ASLBs determination is that the NRC Staff repeatedly evaluated alternatives to the presupposed Holtecs proposal, not reasonable alternatives within the scope of the federal action, Petitioners again appear to be challenging the Staffs analysis, and not any particular finding made by the Board.111 Accordingly, Petitioners new arguments fail to demonstrate that the Board committed a legal error or abused its discretion in its denial of Amended Contention 6.112 On appeal, Petitioners challenge the Boards statement that the alternatives analysis for an EA is expected to be brief,113 and assert that brevity is only permitted when the 107 Appeal at 25-30.

108 Compare Appeal at 25-30 with Amended and New Contentions at 30-34 and Motion at 6-7.

109 Turkey Point, CLI-17-12, 86 NRC at 219.

110 Appeal at 25-30.

111 Id. at 29.

112 Shieldalloy, CLI-07-20, 65 NRC at 503-05.

113 Appeal at 24 (citing LBP-25-5, 101 NRC at __ (slip op. at 20 n.105)).

environmental impact of the proposed action is conceivably small.114 However, the Board correctly determined that the alternatives analysis for an EA is expected to be brief consistent with federal case law, NRC regulations, and NEPA itself.115 Further, Petitioners arguments ignore and fail to dispute that the Board was describing brevity in an EA in the context of the Petitioners failing to demonstrate how the inclusion of additional and unspecified information in the Draft EA raised a genuine, material dispute with the NRC Staffs analysis.116 Moreover, to the extent that Petitioners assert that the NRC Staff and Applicant provided no evidence that the environmental impact from the proposed restart of Palisades is conceivably small enough to permit an abbreviated analysis via an EA under NEPA,117 these arguments fail to demonstrate that the Board somehow erred or abused its discretion, and the Commission should not entertain these new arguments raised for the first time on appeal.118 Petitioners also assert that the Board should not have rejected Petitioners proposed alternatives solely on the ground that they did not meet the purpose and need of the project.119 But the Board made no such finding in LBP-25-5, and instead correctly concluded, as discussed above, that Petitioners failed to demonstrate how the inclusion of additional information raised a genuine, material dispute with the NRC Staffs alternatives analysis.120 Accordingly, for the reasons discussed above, Petitioners arguments do not demonstrate Board error or abuse of 114 Appeal at 24-25 (citing Greater Yellowstone Coalition v. Flowers, 359 F.3d 1257, 1278-79 (C.A.10 (Wyo., 2004)).

115 LBP-25-5, 101 NRC at __ (slip op. at 20 n.105) (citing NEPA § 106(b)(2), 42 U.S.C. § 4336(b)(2);

10 C.F.R. § 51.30(a)(1)(ii); N. Idaho Cmty. Action Network v. U.S. Dept of Transp., 545 F.3d 1147, 1153 (9th Cir. 2008)).

116 LBP-25-5, 101 NRC at __ (slip op. at 20-21).

117 Appeal at 24-25.

118 Shieldalloy, CLI-07-20, 65 NRC at 503-05. To the extent Petitioners are effectively attempting to relitigate their claims in Amended Contention 2 that the NRC Staffs decision to prepare an EA is unsupported, the Board correctly determined that Amended Contention 2 is inadmissible. See supra Discussion Section II. A (discussing Amended Contention 2).

119 Appeal at 25.

120 LBP-25-5, 101 NRC at __ (slip op. at 20-21).

discretion in denying Amended Contention 6. Therefore, the Commission should not review the Boards denial of Amended Contention 6.

E. The Petitioners Do Not Identify Any Error of Law or Abuse of Discretion in the Boards Denial of New Contention 8 In New Contention 8, Petitioners asserted that the Draft EA incorporated by reference several environmental documents based on Council on Environmental Quality (CEQ) regulations that have since been invalidated by the D.C. Circuit Court of Appeals.121 Petitioners argued that, because the underlying CEQ regulations describing the use of incorporation by reference were invalid, the NRC Staffs use of incorporation by reference in the Draft EA was also invalid.122 Because those incorporated documents formed a substantial basis for the NRC Staffs findings in the Draft EA, Petitioners argued that the entire Draft EA was invalid and potentially out of date.123 In LBP-25-5, the Board appropriately determined that New Contention 8 does not satisfy the contention admissibility requirements because the Petitioners failed to satisfy 10 C.F.R.

§ 2.309(f)(1)(v)-(vi).124 The Board correctly found that New Contention 8 is based upon a flawed premise that the NRC Staffs use of incorporation by reference relied solely upon the validity of the CEQ regulation in question,125 which, as the Board observed, neither it nor the case law invalidating it were binding upon the NRC.126 The Board also correctly determined that 121Amended and New Contentions at 34; see Marin Audubon Society v. FAA, 121 F.4th 902 (D.C. Cir. 2024), rehg en banc denied, No. 23-1067, 2025 WL 374897 (D.C. Cir. Jan 31, 2025).

122 Amended and New Contentions at 34-36.

123 Id.; see Motion at 8.

124 LBP-25-5, 101 NRC at __ (slip op. at 22-23).

125 Id.

126 Id. at __ (slip op. at 22 n.114).

Petitioners claims that the Draft EA is possibly outdated and must be completely redone are unsupported by any statements of alleged facts or expert opinions.127 On appeal, Petitioners repeat their arguments from the New and Amended Contentions but fail to demonstrate that the Board erred or abused its discretion. Petitioners restate their prior position that the Draft EA itself stated its reliance upon the invalid CEQ regulations as the basis for the incorporation technique, and that the existence of the NRCs own NEPA regulations are irrelevant to that matter.128 As a threshold matter, such a recitation of Petitioners prior position and expression of general disagreement with the Boards decision is not sufficient to trigger Commission review.129 Moreover, in LBP 25-5, the Board correctly found that the NRC has its own NEPA-implementing regulations that are independent of CEQs regulations.130 The Board also noted that, contrary to Petitioners assumption that the CEQ regulations were the sole basis for the NRC Staffs use of incorporation by reference, the Draft EA references both CEQ regulations and other NRC guidance,131 which also provide for the use of incorporation by reference in NRC environmental documents.132 Petitioners recitation of its prior arguments fail to demonstrate that the Board erred or abused its discretion. Petitioners also do not challenge the Boards determination that New Contention 8 is unsupported by any alleged facts or expert 127 LBP-25-5, 101 NRC at __ (slip op. at 22-23).

128 Amended and New Contentions at 34.

129 Turkey Point, CLI-17-12, 86 NRC at 219. See 10 C.F.R. § 2.341(b)(2).

130 LBP-25-5, 101 NRC at __ (slip op. at 22). See 10 C.F.R. § 51.10(a)(2) (The regulations in this subpart implement section 102(2) of NEPA in a manner which is consistent with the NRC's domestic licensing and related regulatory authority and which reflects the Commission's announced policy to take account of the regulations of the Council on Environmental Quality voluntarily, subject to certain conditions.).

131 LBP-25-5, 101 NRC at __ (slip op. at 22 n.115). See Draft EA at 1-7 (To ensure that the EA stands alone and provides sufficient analysis to allow the decision-maker to arrive at a conclusion, the NRC staff adhered to three principles, identified in CEQ regulations and NRC guidance when using the incorporation by reference process).

132 See Environmental Considerations Associated with Micro-reactors, Interim Staff Guidance, Appendix A (Nov. 27, 2020) (ML20252A076) (COL-ISG-029). See also 10 C.F.R. pt. 51, app. A.1.(b) (The techniques of tiering and incorporation by reference described respectively in 40 CFR 1502.20 and 1508.28 and 40 CFR 1502.21 of CEQs NEPA regulations may be used as appropriate to aid in the presentation of issues, eliminate repetition or reduce the size of an environmental impact statement.).

opinions that would support Petitioners claims that the sections of the Draft EA relying upon incorporated documents were invalid.133 Therefore, the Commission should not review the Boards denial of New Contention 8.

CONCLUSION For the reasons set forth above, the NRC Staff submits that the Board correctly denied the Petitioners motion for leave to file new and amended contentions and terminated the proceeding. The Petitioners have not demonstrated any error of law or abuse of discretion in the Boards decision. Accordingly, the Petitioners appeal of LBP-25-5 should be denied.

Respectfully submitted,

/Signed (electronically) by/

Executed in Accord with 10 CFR 2.304(d)

Anita Ghosh Naber Kevin D. Bernstein Counsel for the NRC Staff Counsel for the NRC Staff Mail Stop O15-B04 Mail Stop O15-B04 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 Telephone: (301) 415-0764 Telephone: (301) 415-1001 Email: anita.ghoshnaber@nrc.gov Email: Kevin.Bernstein@nrc.gov Executed in Accord with 10 CFR 2.304(d)

Michal Chwedczuk Counsel for the NRC Staff Mail Stop O15-B04 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-0805 Email: Michal.Chwedczuk@nrc.gov Dated August 8, 2025 133 See LBP-25-5, 101 NRC at __ (slip op. at 22-23).

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of HOLTEC DECOMMISSIONING INTERNATIONAL, LLC, AND HOLTEC PALISADES, LLC (Palisades Nuclear Plant)

Docket No. 50-255-LA-3 Certificate of Service Pursuant to 10 C.F.R § 2.305, I hereby certify that copies of the foregoing, NRC STAFF BRIEF IN OPPOSITION TO THE BEYOND NUCLEAR, DONT WASTE MICHIGAN, MICHIGAN SAFE ENERGY FUTURE, THREE MILE ISLAND ALERT, AND NUCLEAR ENERGY INFORMATION SERVICE APPEAL OF THE ATOMIC SAFETY AND LICENSING BOARDS DECISION IN LBP-25-5, dated August 8, 2025, have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the captioned proceeding, this 8th day of August 2025.

/Signed (electronically) by/

Anita Ghosh Naber Counsel for the NRC Staff Mail Stop O15-B04 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 415-0764 Email: anita.ghoshnaber@nrc.gov Dated in Rockville, Maryland this 8th day of August 2025

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