ML25223A332

LLC Brief in Opposition to Appeal

ML25223A332
Person / Time
Site:	Palisades
Issue date:	08/11/2025
From:	Blanton S, Eskelsen G, Lovett A, Tompkins J Balch & Bingham, LLP, Holtec Decommissioning International, Holtec Palisades
To:	NRC/OCM
SECY RAS
References
RAS 57448, 50-255-LA-3, ASLBP 24-986-01-LA-BD01
Download: ML25223A332 (0)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

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In the Matter of:

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HOLTEC DECOMMISSIONING

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INTERNATIONAL, LLC AND HOLTEC

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Docket No. 50-255-LA-3 PALISADES, LLC

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Palisades Nuclear Plant

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August 11, 2025

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HOLTEC DECOMMISSIONING INTERNATIONAL, LLC AND HOLTEC PALISADES, LLC BRIEF IN OPPOSITION TO APPEAL M. Stanford Blanton Grant W. Eskelsen Alan D. Lovett Jason B. Tompkins BALCH & BINGHAM LLP 1710 Sixth Avenue North Birmingham, AL 35203-2015 Telephone: (205) 251-8100 E-mail: sblanton@balch.com E-mail: geskelsen@balch.com E-mail: alovett@balch.com E-mail: jtompkins@balch.com COUNSEL FOR HOLTEC DECOMMISSIONING INTERNATIONAL, LLC AND HOLTEC PALISADES, LLC

i TABLE OF CONTENTS I.

Background and Procedural History................................................................................ 2 A.

Petitioners New and Amended Contentions........................................................ 3 B.

Boards Decision in LBP-25-05........................................................................... 5 II.

Standard of Review on Appeal......................................................................................... 6 III.

Argument........................................................................................................................ 8 A.

The New and Amended Contentions Were Late, without Good Cause.................. 8 B.

The Commission Should Reject Petitioners Challenge to the Admissibility Standard............................................................................................................. 10 C.

Petitioners Have Not Identified Any Error of Law or Abuse of Discretion in the Boards Bases for Rejecting Amended Contention 2..................................... 11 D.

Petitioners Have Not Identified Any Error of Law or Abuse of Discretion in the Boards Bases for Rejecting Contention 4..................................................... 15 E.

Petitioners Have Not Identified Any Error of Law or Abuse of Discretion in the Boards Bases for Rejecting Amended Contention 5..................................... 17 F.

Petitioners Have Not Identified Any Error of Law or Abuse of Discretion in the Boards Bases for Rejecting Amended Contention 6..................................... 20 G.

Petitioners Have Not Identified Any Error of Law or Abuse of Discretion in the Boards Bases for Rejecting New Contention 8............................................ 23 IV.

Conclusion.................................................................................................................... 25

ii TABLE OF AUTHORITIES COMMISSION APPELLATE DECISIONS Advanced Medical Systems, Inc. (One Factory Row), CLI-94-06, 39 NRC 285 (1994)................6 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-07, 69 NRC 235 (2009).............................................................................................................. 7, 10 Crow Butte (License Renewal for In Situ Leach Facility, Crawford, NE), CLI-19-05, 89 NRC 329 (2019).................................................................................................................. 10 Crow Butte Res., Inc. (Marsland Expansion Area), CLI-14-02, 79 NRC 11 (2014)......................6 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI 36, 60 NRC 631 (2004).........................................................................................................6 DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 3), CLI-15-01, 81 NRC 1 (2015).....................9 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), CLI-15-06, 81 NRC 340 (2015)............................................................................................................................. 6, 17 Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), CLI-13-07, 78 NRC 199 (2013)...............................................................................................................7 FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), CLI-12-08, 75 NRC 393 (2012)....................................................................................................7 Holtec Decommissioning International, LLC (Palisades Nuclear Plant), CLI-25-03, 101 NRC __ (Apr. 29, 2025)........................................................................................................3 Hydro Res., Inc. (Rio Rancho, NM), CLI-04-33, 60 NRC 581 (2004).........................................6 Interim Storage Partners LLC (WCS Consolidated Interim Storage Facility), CLI-20-15, 92 NRC 491 (2020)...............................................................................................................6 PPL Susquehanna LLC (Susquehanna Steam Electric Station, Units 1 and 2), CLI-07-25, 66 NRC 101 (2007)...............................................................................................................6 Private Fuel Storage, L.L.C., (Independent Spent Fuel Storage Installation), CLI-05-08, 61 NRC 129 (2005)...............................................................................................................7 Progress Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plan, Units 2 and 3),

CLI-10-09, 71 NRC 245 (2010)........................................................................................... 10 Public Serv. Co. of N.H. (Seabrook Station, Unit 1), CLI-91-14, 34 NRC 261 (1991)..................7 Shieldalloy Metallurgical Corp. (Newfield, New Jersey Facility), CLI-07-20, 65 NRC 499 (2007)................................................................................................................. 6, 14, 19 Southern Nuclear Operating Co., Inc. (Vogtle Elec. Generating Plant, Units 3 and 4),

CLI-17-02, 85 NRC 33 (2017)...............................................................................................6 Tex. Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 2), CLI-93-10, 37 NRC 192 (1993)...............................................................................................................6 USEC Inc. (Am. Centrifuge Plant), CLI-06-10, 63 NRC 451 (2006).......................................... 10

iii ATOMIC SAFETY AND LICENSING BOARD DECISIONS Holtec Decommissioning International, LLC (Palisades Nuclear Plant), LBP-25-04, 101 NRC __ (Mar. 31, 2025)....................................................................................... 3, 5, 15 Holtec Decommissioning International, LLC (Palisades Nuclear Plant), LBP-25-05, 101 NRC __ (Jun. 20, 2025)................................................................................................ passim Holtec Intl (HI-STORE Consolidated Interim Storage Facility), LBP-19-4, 89 NRC 353 (2019)............................................................................................................................... 7, 8 Holtec Palisades, LLC (Palisades Nuclear Plant), LBP-25-06, 101 NRC __ (2025)................... 10 Nuclear Mgmt. Co., LLC (Palisades Nuclear Plant), LBP-06-10, 63 NRC 314 (2006)..... 9, 12, 16 FEDERAL CASES Backcountry Against Dumps v. Chu, 215 F. Supp. 3d 966 (S.D. Cal 2015)................................ 18 Blue Mountains Biodiversity Project v. Jeffries, 99 F.4th 438 (9th Cir. 2024)............................ 24 Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190 (D.C. Cir. 1991)................................. 18 Friends of Ompompanoosuc v. FERC, 968 F.2d 1549 (2d Cir. 1992)........................................ 22 James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085 (D.C. Cir. 1996)................................... 24 Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766 (1983).............................. 18 Nat. Res. Def. Council v. NRC, 879 F.3d 1202 (D.C. Cir. 2018)................................................ 11 River Rd. All., Inc. v. Corps of Eng'rs of U.S. Army, 764 F.2d 445 (7th Cir. 1985)..................... 22 Seven County Infrastructure Coalition v. Eagle County 605 U.S. __, 145 S. Ct. 1497 (2025)................................................................................................................................. 23 Thompson v. U.S. Dept of Lab., 885 F.2d 551 (9th Cir. 1989).................................................. 24 FEDERAL REGISTER 68 Fed. Reg. 55,905, 55,910 (Sep. 29, 2003)............................................................................. 20 CEQ, Interim Final Rule, Removal of National Environmental Policy Act Implementing Regulations, 90 Fed. Reg. 10,610 (Feb. 25, 2025)................................................................ 24 REGULATIONS 10 CFR § 2.206...........................................................................................................................9 10 CFR § 2.309.................................................................................................................. passim 10 CFR § 2.341(b)(3)..................................................................................................................1 10 CFR § 50.59..................................................................................................................... 4, 15 10 CFR § 50.82...........................................................................................................................3 10 CFR § 51.10......................................................................................................................... 23 10 CFR § 51.22...........................................................................................................................8

iv 10 CFR § 51.30......................................................................................................................... 17 10 CFR § 51.53......................................................................................................................... 20 10 CFR § 51.95......................................................................................................................... 20

1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

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In the Matter of:

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Docket No.

50-255-LA-3

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HOLTEC DECOMMISSIONING

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INTERNATIONAL, LLC AND HOLTEC

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PALISADES, LLC

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Palisades Nuclear Plant

)

August 11, 2025

)

HOLTEC DECOMMISSIONING INTERNATIONAL, LLC AND HOLTEC PALISADES, LLC BRIEF IN OPPOSITION TO APPEAL In accordance with 10 CFR § 2.341(b)(3), Holtec Decommissioning International, LLC and Holtec Palisades, LLC (collectively, Applicants) submit this brief in opposition to the Notice of Appeal (the Appeal)1 filed on July 15, 2025 by Beyond Nuclear, Dont Waste Michigan, Michigan Safe Energy Future, Three Mile Island Alert, and Nuclear Energy Information Service (collectively, Petitioners or Petitioning Organizations). Petitioners appeal the Atomic Safety and Licensing Boards (Boards) June 20, 2025 decision in LBP-25-05,2 which denied Petitioners motion for leave to file new and amended contentions in this proceeding.3 1 Notice of Appeal of ASLB Decision LBP-25-05, 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) (ML25196A132) (Appeal).

2 Holtec Decommissioning International, LLC (Palisades Nuclear Plant), LBP-25-05, 101 NRC __ (slip op.) (Jun. 20, 2025) (ML25171A153) (Order).

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

(Motion). The Motion was accompanied by a separate filing in which Petitioning Organizations set forth their proposed new and amended contentions. See 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) (New and Amended Contentions).

2 The Appeal repeats nearly all of Petitioners arguments presented to the Board but rarely engages with the Boards reasons for rejecting those arguments, and, apart from a few conclusory claims, does not articulate any specific error of law or abuse of discretion by the Board that warrants reversal. Indeed, one of the principal flaws of Petitioners New and Amended Contentions was their failure to engage with the details of Applicants submittals and NRCs environmental review document to articulate specific deficiencies and explain why those deficiencies are material to NRCs determinations. Petitioners have repeated the same flaw in their Appeal from the Boards Order. The Appeal expresses general disagreement with the Order, stating the conclusion that it violates the National Environmental Policy Act (NEPA) and NRCs contention-admissibility standards, but failing to grapple with any of the specific reasons the Board found their contentions inadmissible and failing to ever explain why. This kind of generalized expression of disagreement, coupled with rote repetition of the arguments the Board rejected, provides no basis for overturning the Order. Moreover, while the Board did not couch its decision on the untimeliness of the New and Amended Contentions, Petitioners waited too late to challenge the information that was available to them well before the Draft EA was published, and, therefore, the New and Amended Contentions are untimely, in addition to being inadmissible. For these reasons, which are set forth in more detail below, the Commission should deny the Appeal and affirm the Order.

I.

Background and Procedural History The New and Amended Contentions relate to license amendment requests (the LARs)

Applicants filed to support restart of the Palisades Nuclear Plant (Palisades) and NRCs environmental review of the same. The present Appeal is now the third time Petitioners challenges to the Palisades restart have been presented to the Commission. Accordingly, Applicants will not

3 repeat general background on the restart, which is explained in the Boards orders and in Applicants previous filings to the Commission.4 A. Petitioners New and Amended Contentions Petitioners filed seven contentions in a petition to intervene and request for hearing submitted October 10, 2024 (Petition).5 In a decision issued March 31, 2025, the Board rejected all of the original contentions as inadmissible (March Order).6 Petitioners separately appealed the March Order, which remains before the Commission but is not the subject of the current Appeal or this reply brief.7 Petitioners filed the New and Amended Contentions on March 3, 2025, asserting that NRCs draft Environmental Assessment, published January 30, 2025,8 constituted new information justifying updates to their original contentions and the addition of one new contention.

4 See Holtec Decommissioning International, LLC (Palisades Nuclear Plant), LBP-25-04, 101 NRC __ (slip op. at 3-

5) (Mar. 31, 2025); Holtec Decommissioning International, LLC and Holtec Palisades, LLC Brief in Opposition to Appeal at 2-5 (May 20, 2025) (ML25140A977) (Opposition to Original Appeal). In 2021, the Commission considered a petition for rulemaking asking NRC to amend its rules to address a situation where a reactor resumes power operations after transitioning into decommissioning, and the Commission ultimately determined that the NRC may address such requests under the existing regulatory framework. See Criteria to Return Retired Nuclear Power Reactors to Operations, 86 Fed. Reg. 24,362 (May 6, 2021) (PRM Denial). The Commission re-affirmed that decision in CLI-25-03, holding that the existing regulatory framework allows an applicant to apply for the restart of a shutdown reactor that had already submitted the 10 CFR § 50.82(a)(1) certifications. Holtec Decommissioning International, LLC (Palisades Nuclear Plant), CLI-25-03, 101 NRC __ (Apr. 29, 2025) (slip op. at 17).

5 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) (Petition).

6 Palisades, LBP-25-04, 101 NRC __ (slip op. at 64).

7 See Notice of Appeal of ASLB Decision LBP-25-04, by Beyond Nuclear, Dont Waste Michigan, Michigan Clean

[sic] Energy Future, Three Mile Island Alert, and Nuclear Energy Information Service, and Brief in Support of Appeal (Apr. 25, 2025) (ML25115A265) (Original Appeal).

8 NRC Draft Environmental Assessment and Draft Finding of No Significant Impact for the Palisades Nuclear Plant Reauthorization of Power Operations Project (Jan. 2025) (ML24353A157) (Draft EA). NRC has since published the final environmental assessment. See Environmental Assessment and Finding of No Significant Impact for the Palisades Nuclear Plant Reauthorization of Power Operations Project (May 2025) (ML25111A031) (Final EA).

Petitioners did not seek to further amend their contentions based on information in the Final EA. Prior to terminating the proceeding, the Board reviewed the Final EA and found no material differences between the Final and Draft EA with regard to Petitioning Organizations proposed contentions. Order at 2 n.4.

4 The table below summarizes the New and Amended Contentions and the original version of the contention, where applicable:

Original Contention New or Amended Contention Original Contention 2 asserted that NRC was required to prepare an environmental impact statement (EIS) because Palisades can only restart if it receives a new operating license.

Amended Contention 2 continues to assert that NRC is required to prepare an EIS because the restart requires issuance of a new operating license. The amended and substituted contention also asserts that the Draft EA identified significant environmental impacts that require the preparation of an EIS instead of a Finding of No Significant Impact.9 Original Contention 4 challenged the regulatory process Applicants and NRC used to authorize the return to operations, including a claim that the 10 CFR § 50.59 process is unavailable because climate change will require design modifications in the future.

Contention 4 was not amended; however, Petitioners pointed to the Draft EAs discussion of climate change as new supporting evidence for admission of the contention as originally pled.10 Original Contention 5 claimed that Applicants did not submit a purpose and need statement.

Amended Contention 5 challenged the Draft EAs purpose and need statement because it is too similar to the statement proposed by Applicants and because NRC did not justify the need for power from Palisades.11 Original Contention 6 claimed that Applicants did not discuss alternatives to the proposed federal action.

Amended Contention 6 challenged the Draft EAs discussion of alternatives as unsupported and incomplete.12 n/a New Contention 8 asserts that invalidation or repeal of Council on Environmental Quality (CEQ) regulations means the Draft EA cannot incorporate or reference prior environmental review documents.13 9 New and Amended Contentions at 4.

10 Id. at 8 n.17; Motion at 3.

11 New and Amended Contentions at 27.

12 Id. at 30.

13 Id. at 34.

5 B. Boards Decision in LBP-25-05 The Board found each of the New and Amended Contentions inadmissible. The Board rejected Amended Contention 2 for failure to raise a genuine dispute with the Draft EA because Petitioners either ignored the relevant portions of the Draft EA or merely criticized it without explaining why the Draft EAs conclusions were unreasonable or why the additional factors urged by Petitioners would change its conclusion.14 The Board rejected the new arguments in support of Contention 4 because, as the Board already held in its March Order, the claim that climate change will require future design modifications is beyond the scope of the present proceeding.15 The Board rejected Amended Contention 5 because Petitioners challenge to the Draft EAs purpose and need statement presented out-of-scope disputes with state and federal energy policy, Petitioners did not provide any legal rational for why NRC was required to conduct power demand analyses, and Petitioners arguments ignored precedent that clearly allows an agency to consider the applicants goals in articulating the purpose and need for a project.16 The Board rejected Amended Contention 6 for similar reasons, finding Petitioners challenge to Michigans clean energy law to be out of scope and rejecting Petitioners other critiques to the Draft EAs alternatives because they either ignored the relevant discussion in the Draft EA or failed to explain why additional analyses were required by NEPA or material to the Draft EAs conclusions.17 Finally, the Board rejected New Contention 8 because Petitioners arguments that NRC cannot incorporate other documents into the Draft EA is unsupported and incorrect.18 14 Order at 7-11.

15 Id. at 12 (citing Palisades, LBP-25-04, 101 NRC at __ (slip op. at 58-61)).

16 Id. at 15-17.

17 Id. at 17-21.

18 Id. at 22-23.

6 II.

Standard of Review on Appeal Petitioners appealed the Boards Order pursuant to 10 CFR § 2.341. In reviewing such decisions, the Commission will defer to [such] rulings on contention admissibility unless an appeal demonstrates an error of law or abuse of discretion.19 The Commission generally defers to the Boards judgment as to whether a proposed contention has a sufficient factual basis to be admitted.20 The party appealing a Boards denial of intervention bears the responsibility of clearly identifying the errors in the decision below and ensuring that its brief contains sufficient information and cogent argument to alert the other parties and the Commission to the precise nature of and support for the appellants claims.21 Appeals that simply repeat or add to previous claims are insufficient to show error.22 A mere recitation of an appellants prior positions in a proceeding or a statement of his or her general disagreement with a decisions result is no substitute for a brief that identifies and explains the errors of the Licensing Board in the order below.23 Likewise, general arguments [that] do not come to grips with the Boards reasons for rejecting a contention will not revive a contention that lacks support in the law or facts.24 The Commission will not consider arguments or legal theories raised for the first time on appeal.25 However, the 19 Southern Nuclear Operating Co., Inc. (Vogtle Elec. Generating Plant, Units 3 and 4), CLI-17-02, 85 NRC 33, 40 (2017); see also Crow Butte Res., Inc. (Marsland Expansion Area), CLI-14-02, 79 NRC 11, 26 (2014) (affording substantial deference to licensing board decisions).

20 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), CLI-15-06, 81 NRC 340, 354-55 (2015).

21 Advanced Medical Systems, Inc. (One Factory Row), CLI-94-06, 39 NRC 285, 297 (1994).

22 Shieldalloy Metallurgical Corp. (Newfield, New Jersey Facility), CLI-07-20, 65 NRC 499, 503 (2007); PPL Susquehanna LLC (Susquehanna Steam Electric Station, Units 1 and 2), CLI-07-25, 66 NRC 101, 104 (2007).

23 Tex. Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 2), CLI-93-10, 37 NRC 192, 198 (1993);

see also Interim Storage Partners LLC (WCS Consolidated Interim Storage Facility), CLI-20-15, 92 NRC 491, 501 (2020).

24 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-04-36, 60 NRC 631, 639 (2004).

25 See, e.g., Shieldalloy, CLI-07-20, 65 NRC at 504-05; Hydro Res., Inc. (Crownpoint, NM), CLI-06-29, 64 NRC 417, 421 (2006); Hydro Res., Inc. (Rio Rancho, NM), CLI-04-33, 60 NRC 581, 591 (2004)

7 Commission may affirm a licensing boards order on any grounds, including alternative bases for dismissing a petition.26 The question before the Board was whether Petitioners satisfied the requirements of 10 CFR § 2.309. First, § 2.309(f)(1) required Petitioners to bring a contention that is within the scope of this licensing proceeding and presents a material dispute with the application, bolstered by meaningful factual and expert support.27 A contention that fails to comply with even one of the

§ 2.309(f)(1) criteria is inadmissible.28 Accordingly, to prevail on appeal, Petitioners bear the burden of demonstrating that the Board erred in each of its bases for rejecting their contentions.29 Because the New and Amended Contentions were filed after the Federal Register deadline, Petitioners also were required to satisfy the good cause standard in 10 CFR § 2.309(c)(1).30 To meet the good cause standard, Petitioners were required to demonstrate that each of the New and Amended Contentions is based on information that is materially different from information that was previously available. Previously available information that is newly acquired does not constitute good cause, as new and amended contentions must be based on new facts not previously available.31 Furthermore, Petitioners must demonstrate that the new information upon which they 26 See Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), CLI-13-07, 78 NRC 199, 206 (2013);

Private Fuel Storage, L.L.C., (Independent Spent Fuel Storage Installation), CLI-05-08, 61 NRC 129, 166 (2005);

Public Serv. Co. of N.H. (Seabrook Station, Unit 1), CLI-91-14, 34 NRC 261, 266 (1991).

27 10 CFR § 2.309 (f)(1)(iii), (v), (vi).

28 FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), CLI-12-08, 75 NRC 393, 395-96 (2012).

29 See Millstone, CLI-04-36, 60 NRC at 638.

30 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-07, 69 NRC 235, 260-61 (2009).

31 Holtec Intl (HI-STORE Consolidated Interim Storage Facility), LBP-19-4, 89 NRC 353, 374 (2019) (internal quotation marks omitted), revd in part on other grounds, 91 NRC 167 (2020).

8 rely is materially differenti.e., [m]aterially different in this context concerns the type of degree or difference between the new information and previously available information.32 III.

Argument A. The New and Amended Contentions Were Late, without Good Cause Applicants and NRC Staff both challenged the timeliness of Petitioners New and Amended Contentions. The Board chose not to address the issue of timeliness because it determined that the New and Amended Contentions were inadmissible.33 Although the Boards admissibility determination is sound, the New and Amended Contentions were also untimely under 10 CFR § 2.309(c). The majority of the information relied on by the New and Amended Contentions was available when Petitioners filed their original petition in October 2024. For example, the New and Amended Contentions relied on the 2006 license renewal Supplemental EIS (SEIS),34 the (undisputed and obvious) fact that operating the plant will produce additional radiological waste,35 an affidavit Petitioners filed in 2005 alleging seismic defects in the spent fuel 32 HI-STORE, LBP-19-4, 89 NRC at 374 n.117 (quoting Florida Power & Light Co. (Turkey Point Units 6 and 7),

LBP-17-6, 86 NRC 37, 48 (2017), affd, CLI-17-12, 86 NRC 215 (2017)).

33 Order at 5. Although the Board, in a footnote, expressed skepticism at the practicality and fairness of enforcing the good cause standard under the present circumstances (id. at n.21), no authority exists in the Commissions case law that gives petitioners or licensing boards discretion to ignore 10 CFR § 2.309(c), which is exclusively focused on when information becomes available. Well before publication of the Draft EA, Petitioners had every opportunity to dispute Applicants assertion that the environmental impacts of restarting Palisades are not significant, as well as the supporting information Applicants filed in connection with that conclusion. See, e.g., HDI PNP 2023-030, Letter from Holtec Decommissioning International, LLC to NRC, License Amendment Request to Revise Renewed Facility Operating License and Permanently Defueled Technical Specifications to Support Resumption of Power Operations, at (Dec. 14, 2023) (ML23348A148) (invoking the categorical exclusion in 10 CFR § 51.22(c)(9), which applies to an action that does not individually or cumulatively have a significant effect on the human environment (10 CFR

§ 51.22(a)). Petitioners chose to pursue a different legal theory instead. See Petition at 40-43 (asserting that an EIS is required because restarting Palisades requires a new operating license). That did not save them from the application of the 2.309(c) standard. See generally Applicants Answer Opposing Beyond Nuclear Et Al.s New and Amended Contentions at 18-22 (Mar. 28, 2025) (ML25087A258) (Answer).

34 New and Amended Contentions at 4-5; see also Answer at 23-24.

35 New and Amended Contentions at 5; see also Answer at 24-25.

9 storage pad,36 normal maintenance and upkeep activities at the site that have taken place since license renewal (including buildings that were constructed a decade ago),37 and publicly-available data regarding climate change and the temperature of Lake Michigan.38 Petitioners ignored most of the environmental information submitted by Applicants, including a review of new and significant NEPA information filed in September 202339 and a response to a request for additional information filed in October 2024 (five months before Petitioners filed the New and Amended Contentions), which included, among other things, a proposed purpose and need statement and discussion of alternatives that are substantially similar to the relevant portions of the Draft EA.40 Petitioners claimed that they were entitled to ignore this information because (1) it was not presented in an environmental report, and (2) they did not know if NRC would include the information in the Draft EA until its publication.41 Both theories are contradicted by NRC precedent and provide no basis for amending contentions months after the information was available.42 The Commission may affirm the Boards decision on any grounds and should do so here on the grounds that the New and Amended Contentions were untimely.

36 Nuclear Information and Resource Service, West Michigan Environmental Action Council, Dont Waste Michigan, Green Party of Van Buren County, and Michigan Land Trustees Request for Hearing and Petition to Intervene at 5 (Aug. 8, 2005) (ML052940221). The licensing board in that proceeding did not admit the issue for hearing because it was a compliance argument, which must be brought under 10 CFR § 2.206. Nuclear Mgmt. Co., LLC (Palisades Nuclear Plant), LBP-06-10, 63 NRC 314, 359-60 (2006). Petitioning Organizations appear to have raised this issue in most comments and intervention petitions they have filed since then. See Answer at 24 n.104.

37 New and Amended Contentions at 6-7; see also Answer at 27-29.

38 New and Amended Contentions at 18-23; see also Answer at 45-48.

39 HDI PNP 2023-025, Letter from Holtec to NRC, Request for Exemption from Certain Termination of License Requirements of 10 CFR 50.82, Enclosure 2 (Sept. 28, 2023) (ML23271A140) (New and Significant Review).

40 HDI, Response to Request for Additional Information Regarding the Proposed Reauthorization of Power Operations at Palisades Nuclear Plant under Renewed Facility Operating License No. DPR-20 (Oct. 4, 2024) (ML24278A027)

(Environmental RAI Response).

41 Appeal at 12-13.

42 See, e.g., DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 3), CLI-15-01, 81 NRC 1, 7 (2015) (upholding dismissal of a proposed contention where intervenors purposely waited to see whether the Staff would supplement the analysis

10 B. The Commission Should Reject Petitioners Challenge to the Admissibility Standard The Appeal repeats Petitioners prior arguments that the § 2.309(f) standard is a lenient notice pleading standard, and, therefore, the Board erred by requiring them to prove the merits of their case at the contention-admissibility phase.43 Petitioners raised this argument for the first time six months after they filed their Petition44 and repeated it in their earlier appeal from the Boards March Order.45 Applicants have addressed this argument in prior briefing to the Commission and need not belabor the point.46 It is untimely and contrary to decades of precedent.47 As a licensing board in a parallel proceeding recently explained in rejecting Petitioners same argument, [w]hile petitioners need not prove their contentions at the admissibility stage, the contention admissibility standards do require petitioners to proffer at least some minimal factual and legal foundation in support of their contentions.48 It suffices to say that the Board here did not err by requiring Petitioners to meet this longstanding requirement.

provided in the [applicants] environmental report during its NEPA review); Crow Butte (License Renewal for In Situ Leach Facility, Crawford, NE), CLI-19-05, 89 NRC 329 (2019) (explaining that environmental challenges should not wait for staffs review).

43 Appeal at 7-11.

44 Petitioners made this argument for the first time in their reply brief in support of the New and Amended Contentions.

See Petitioning Organizations Reply in Support of Amended and New Contentions at 1-5 (Apr. 4, 2025)

(ML25094A211) (Reply).

45 See Original Appeal at 9-12.

46 See Opposition to Original Appeal at 12-15; see also Oyster Creek, CLI-09-07, 69 NRC at 275 ([The petitioner]

argues that at the contention stage the Board should construe the facts in favor of the petitioner, as a court does when considering motions to dismiss. This argument ignores our very explicit rules on contention admissibility.) (emphasis in original).

47 See, e.g., Progress Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plan, Units 2 and 3), CLI-10-09, 71 NRC 245, 261 (2010) (The decision consists of the Boards determination that the contention was insufficiently supported and failed to show that a genuine dispute exists... The Boardappropriatelyreviewed the materials in support of the contention....); USEC Inc. (Am. Centrifuge Plant), CLI-06-10, 63 NRC 451, 457 (2006) (We expect our licensing boards to examine cited materials to verify that they do, in fact, support a contention.).

48 Holtec Palisades, LLC (Palisades Nuclear Plant), LBP-25-06, 101 NRC __ (2025) (slip op. at 8-9).

11 C. Petitioners Have Not Identified Any Error of Law or Abuse of Discretion in the Boards Bases for Rejecting Amended Contention 2 The only portion of Amended Contention 2 that differed from the original contention is Petitioners challenge to the Finding of No Significant Impact, which they claim is not supported by the facts and is arbitrary, capricious, unreasonable, and an abuse of discretion.49 Petitioners asserted that the Draft EAs reference to and reliance on the SEIS was, in and of itself, proof that an EIS is required for the restart and, alternatively, that both the Draft EA and the SEIS inadequately considered various issues, including radioactive waste, earthquakes, and construction activities at the site.50 The Board rejected these arguments as unsupported and out of scope because (1) Petitioners offered no basis for why referencing the SEIS (which concluded that the environmental effects of operating Palisades during the renewal term were expected to be SMALL51) was improper or called into question the Draft EAs conclusion that the environmental effects of returning the plant to operational status is expected to be not significant, (2) the contents and conclusions of the SEIS are not subject to relitigation in the present proceeding, and (3) Petitioners either ignored the relevant discussion in the Draft EA or failed to explain why further evaluation of the issues discussed in their New and Amended Contentions 49 New and Amended Contentions at 1. The rest of the amended contention simply repeats Petitioners original argument that Applicants are required to obtain a new operating license in order to restart Palisades, which the Board rejected in the March Order and which Petitioners and Applicants have fully addressed in their appeal briefs to the Commission on the March Order. See Order at 8-9; March Order at 51-54; Opposition to Original Appeal at 23-28.

50 See Order at 7-8.

51 See NUREG-1437, Supp. 27, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Regarding Palisades Nuclear Plant at 9-5, 9-8 (Oct. 31, 2006) (ML062710300); 10 CFR Part 51, Subpt. A, Appx B, at Table B-1, n.3; Nat. Res. Def. Council v. NRC, 879 F.3d 1202, 1213 (D.C. Cir. 2018) (In accordance with the NRCs usual practice... the FEIS defines small effects as effects that are not detectable... or so minor that they will neither destabilize nor noticeably alter any important attribute of the resource.).

12 would lead to a finding of significant impacts.52 The Appeal does not identify any error in the Boards rejection of Amended Contention 2; instead, the Appeal misconstrues the Order.

First, Petitioners claim that the Board improperly rejected Petitioners arguments regarding the Draft EAs reliance on the SEIS as out of scope.53 The Board did not reject that argument as out of scope. The Board rejected that argument as unsupported and incorrect. Amended Contention 2 claimed that the Draft EA simply adopted the conclusions of the SEIS.54 But, as the Board explained, the Draft EA did not blindly adopt the SEIS; rather, it evaluated the environmental effects of restarting the plant based on the prior reviews (including the SEIS) and present-day information that considered restart-specific activities, the passage of time, and changes to the underlying NEPA requirements since 2006all of which is discussed in the Draft EA.55 The Board rejected Petitioners claim because it ignored these portions of the Draft EA.56 To be sure, the Board also explained that Petitioners could not relitigate the contents of the SEIS in this proceeding.57 But that determination did not mean Petitioners were incapable of challenging the Draft EA, including the reasonableness of its reliance on specific portions of the SEIS. However, 52 Order at 9-11.

53 Appeal at 16 n.14 (citing Order at 9 n.37).

54 See New and Amended Contentions at 4-5.

55 Order at 9-10; see, e.g., Draft EA at 3-1 (Palisades is currently in a decommissioning state. Therefore, the affected environment will be defined for each resource area given this temporal baseline.); id. at 3-61 (No significant design configuration or operational changes are inspected to impact waste management. The facility would return to the same operational state prior to decommissioning and would have the same level of impacts as concluded in the 2006 SEIS.); id. at 3-60 (Holtec estimated the total amount of radioactive wastes generated during refueling activities as part of preparations for the resumption of power operations...).

56 Order at 9 (Contrary to Petitioning Organizations view, the Staff did not conclude that the impacts from restarting Palisades would be the same as those discussed in the license renewal SEIS. 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. (citation omitted)); see Draft EA at 4-1.

57 Order at 9 n.37. Several of Petitioners arguments in Amended Contention 2 are the same arguments they made twenty years ago in the license renewal proceeding. See, e.g., Palisades, LBP-06-10, 63 NRC at 359 (rejecting argument that SEIS was deficient because it did not adequately address earthquakes).

13 to raise such an argument, Petitioners had to engage with the contents of the Draft EA, which they did not do.

The Appeal also misconstrues the Boards reasons for rejecting their arguments related to radiological waste and seismic risk. The Appeal states: the ASLB claims that... the EA adequately discusses the impact of radioactive waste by referencing the 2006 EIS,58 and [t]he Board claimed that earthquakes were covered in the 2006 EIS and Petitioners argument was therefore out of scope.59 The Order actually rejected these arguments because (1) Petitioners overlook[ed] analyses in the Draft EA that appear to be directly relevant to their arguments,60 and (2) Petitioners failed to explain how further consideration of either issue would change the conclusions of the Draft EA.61 The Order explicitly states that the Draft EA includes a discussion of impacts from the uranium fuel cycle, as well as the Staffs consideration of impacts from the six years remaining on the renewed facility operating license and the cumulative impacts from a twenty-year subsequent license renewal.62 And [t]he Draft EA also contains a discussion of postulated accidents [and] Petitioning Organizations do not explain how the consideration of earthquakes would alter that discussion.63 The Appeal does not engage with the actual reasons the Board rejected Petitioners arguments, which, again, was due to their failure to articulate specific arguments grounded in legal precedent and the contents of the Draft EA.

58 Appeal at 16 (emphasis added).

59 Id. (emphasis added).

60 Order at 9 (emphasis added).

61 Id. (Regarding their challenges to the Draft EAs purported lack of discussion of radioactive waste and earthquakes, Petitioning Organizations merely assert, without more, that including such a discussion will lead to a finding of significant impacts. (citation omitted)).

62 Id. at 10 (emphasis added).

63 Id. (emphasis added).

14 Finally, the Appeal claims that the Board misunderstood Petitioners argument that the EA does not use Palisades decommissioning status as the environmental baseline.64 Amended Contention 2 stated that, the baseline for determining the environmental impact of restarting Palisades should be the status of Palisades when it went into decommissioning mode, not when it was in operation.65 As the Order explained, [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.66 The Appeal now asserts that Petitioners actual objection was, that the EA consistently uses documents and other sources that predate the Palisades decommissioning.67 Petitioners did not clearly articulate that argument to the Board, and so the Board did not commit reversible error by failing to address it.68 Even if Amended Contention 2 had raised a general challenge to the dates of the Draft EAs references, neither Amended Contention 2 nor the Appeal provides any explanation for why it was unreasonable for the Draft EA to reference some documents that predate the plants 2022 shutdown when considering the environmental effects of restarting and operating the plant. Nor do Amended Contention 2 or the Appeal identify any specific information from the post-shutdown period that should have been, but was not, considered in the Draft EA (or its references)much less explain how that information would have changed the Draft EAs conclusions.69 64 Appeal at 17.

65 New and Amended Contentions at 5.

66 Order at 10 (quoting Draft EA at 1-6).

67 Appeal at 17.

68 Shieldalloy, CLI-07-20, 65 NRC at 504-05.

69 The example provided in Amended Contention 2 was the generation of additional radiological waste through the renewal term and a subsequent renewal term, if granted. New and Amended Contentions at 5. As the Order explained, the Draft EA specifically considered this. Order at 9-10 (citing Draft EA at 3-63, G-1).

15 The Appeal misconstrues the Order and fails to address the actual reasons the Board rejected Amended Contention 2. Thus, the Appeal does not supply a basis for overturning the Boards rejection of Amended Contention 2.

D. Petitioners Have Not Identified Any Error of Law or Abuse of Discretion in the Boards Bases for Rejecting Contention 4 The original Contention 4 was a challenge to NRCs authority to authorize the restart, which included a subheading that asserted that climate change will require future design changes that cannot be implemented via the 10 CFR § 50.59 change process and, thus, will require future license amendments.70 In the March Order, the Board rejected this challenge to Applicants use of the 50.59 process because it is an impermissible challenge to NRCs regulations and an out-of-scope argument related to future license amendments or 50.59 screenings.71 The New and Amended Contentions did not amend Contention 4; instead, Petitioners claimed that the Draft EAs discussion of climate change (principally located in Appendix F to the Draft EA) provided factual support for Contention 4 as originally pled.72 The Order rejected the new bases in support of Contention 4 because, at best, Petitioners merely bolstered an out-of-scope argument.73 The Appeal does not dispute this disposition but instead tries to redefine Contention 4 into a challenge to Appendix F, which is an argument Petitioners did not make to the Board.

The Appeal states, incorrectly, that [t]he initial Contention 4 pointed out that Holtecs environmental document did not discuss the impacts of climate change.74 That was not 70 Petition at 57-61.

71 Palisades, LBP-25-04, 101 NRC at __ (slip op. at 60-61).

72 Motion at 3 (The new information in Appendix F provides further confirmation of the statements and opinions of Petitioners expert, Arnold Gundersen, that the effects of climate change on the environment will affect the components and operational procedures of Palisades if it is allowed to restart.).

73 Order at 12-13.

74 Appeal at 17.

16 Contention 4; that was Petitioners original Contention 7, which asserted that Applicants provided no meaningful identification nor discussion of the effects of anthropocene climate change on the functioning and componentry of the plant....75 Following publication of the Draft EA, Petitioners did not amend Contention 7 to dispute the adequacy of the Draft EAs discussion of climate change. Instead, Petitioners told the Board (1) publication of the EA assuages... the omission of discussion of climate change effects claimed in Contention 7,76 and (2) Appendix F bolstered their argument that climate change will impact plant operations.77 Accordingly, the March Order dismissed Contention 7 as moot,78 and Petitioners did not object to that dismissal in their appeal from the March Order.79 The Appeal now asserts that the point of Contention 4 was actually to challenge the adequacy of Appendix F. [A]lthough the EA, Appendix F, discusses climate change, it fails to identify and discuss the impacts of climate change on the systems, structures and components, critical to safety, of the Palisades reactor.80 The Appeal claims that the Board arbitrarily and unjustifiably ignored the point of the amended contention by failing to address this argument.81 It suffices to say that the Board did not commit reversible error by relying on Petitioners pleadings that told the Board they were satisfied with Appendix F. Moreover, the Board actually did address 75 Petition at 68.

76 Petitioning Organizations Brief on Effects of Environmental Assessment/Finding of No Significant Impact for Palisades Nuclear Plant at 3 (Feb. 26, 2025) (ML25050A618).

77 Motion at 10 (The original Contention 4 presented the statements and opinions of Petitioners expert, Arnold Gundersen, as to the impacts of climate change on the operation of the Palisades plant if it is allowed to restart. The EA in Appendix F discusses climate change and it confirms by the NRCs own admission Mr. Gundersens statements and opinions.)

78 Palisades, LBP-25-04, 101 NRC at __ (slip op. at 63).

79 Original Appeal at 32-33.

80 Appeal at 17.

81 Id. at 18.

17 the possibility that Petitioners were unsatisfied with Appendix F, despite their failure to clearly articulate a challenge to it. Footnote 60 to the Order states:

Petitioning Organizations also appear to assert a challenge to the NRCs climate-change discussion in the Draft EA... but their specific challenges to the Draft EAs climate-change discussion are neither clear nor well supported. Similarly, Petitioning Organizations claim that the draft EAs climate change discussion implicate[s] AEA considerations is vague, and they do not explain what these considerations are or how they relate to the overall contention.82 The Appeal does not address this footnote, much less explain why the Board committed reversible error by finding whatever implied challenge they intended to mount against Appendix F to be neither clear nor well supported.83 Indeed, as recounted above, the record demonstrates that to be a reasonable interpretation of Petitioners pleadings.

In sum, the Appeal does not offer any basis for overturning the Boards dismissal of Contention 4 as it was presented to the Board. Petitioners argument that the Board erred by ignoring an implied challenge to the adequacy of Appendix F conflicts with the record and the Order and impermissibly raises new arguments for the first time on appeal.84 E. Petitioners Have Not Identified Any Error of Law or Abuse of Discretion in the Boards Bases for Rejecting Amended Contention 5 Amended Contention 5 challenged the purpose and need statement in the Draft EA because it is too similar to Applicants proposed statement, too narrow, was unaccompanied by a need-for-82 Order at 13 n.60 (citations omitted).

83 See id.

84 Even if Petitioners had actually challenged Appendix F as they claim they did, NEPA only requires NRC to review the effects of a federal action on the environment, not the effects of the environment on the plant. See 10 CFR

§ 51.30(a)(1)(iii); NUREG-1437, Rev. 2, Vol. 2, Generic Environmental Impact Statement for License Renewal of Nuclear Plants at Appx A, A-222 (Aug. 2024) (ML24086A527) (The implications of long-term climate change on plant operations and adjustments or preparations by licensees to a new or changing environment are outside the scope of the NRCs license renewal environmental review, which documents the potential environmental impacts of continued reactor operations.); Indian Point, CLI-15-06, 81 NRC at 377-78.

18 power analysis, and improperly assumes nuclear energy is clean.85 The Board dismissed the contention because Petitioners arguments are conclusory, contrary to the relevant NEPA standards, and out of scope.86 The Appeal reiterates the arguments the Board rejected and states Petitioners disagreement with the Order, which is insufficient to show error.

First, the Appeal merely repeats the claim that the Draft EA is deficient because its purpose and need statement is too close to Applicants and its scope is too narrow.87 The Board rejected Petitioners argument that NRC blindly adopted Applicants statement as unsupported, rejected their claim that NRC cannot refer to an applicants stated project purposes as inconsistent with federal caselaw, and rejected the claim that the purpose and need statement does not allow for meaningful consideration of alternatives as contradictory to the alternatives discussed in the Draft EA.88 The Appeal restates the same claims and cites the same cases,89 along with a circular 85 New and Amended Contentions at 27-30.

86 See Order at 15-17 (citing 10 CFR § 2.309(f)(1)(iii)-(v)). The Appeal ignores the Boards dismissal of the fourth argument listed (at least with respect to Amended Contention 5), so Applicants only address the first three. However, the fourth argument (challenging Michigan law and the DOEs purpose and need statement) is clearly outside the scope of this proceeding. See 10 CFR § 2.309(f)(1)(iii); Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 777 (1983) (The political process, and not NEPA, provides the appropriate forum in which to air policy disagreements.).

87 Appeal at 19-20.

88 Order at 15.

89 Compare New and Amended Contentions at 27-30 with Appeal at 18-23. The Appeal cites one new case in support of Amended Contention 5: Backcountry Against Dumps v. Chu, 215 F. Supp. 3d 966, 978 (S.D. Cal 2015). Petitioners quote Backcountry in support of their argument that NRC violated NEPA by relying on the purpose and need statement from Applicants because Applicants have a stake in the projects success. Appeal at 23. None of the language Petitioners attribute to the Backcountry court appears in that case. The quoted language in the Appeal appears to be from Citizens Against Burlington, Inc. v. Busey, which specifically says the agency should take into account the needs and goals of the parties involved in the application. 938 F.2d 190, 196 (D.C. Cir. 1991). Congress too has made clear that an agencys NEPA analysis should be focused on the purpose and need presented by the specific project before the agency. In the Fiscal Responsibility Act of 2023, Congress amended Section 102(2) of NEPA to clarify that agencies reviews should be focused on a federal action that meet[s] the purpose and need of the proposal.

Fiscal Responsibility Act of 2023, Section 321(b), Pub. L. 118-5 137 Stat. 10, 41 (June 3, 2023) (Section 107 (d) of the Builder Act which is Section 321); id. Section 111, Definitions (defining proposal as the proposed action at the stage where an agency has a goal, is actively preparing to make a decision on one or more alternative means of accomplishing that goal, and can meaningfully evaluate its effects.). In other words, Congress directed federal agencies to consider the purpose and need of the specific project presented to the agency for a decision, not other projects that could conceivably meet the same purpose. See also note 111 infra.

19 argument that NRC can only give weight to an applicants purpose and need statement if it is reasonable, but Applicants purpose and need statement is not properly supported because it is not reasonable.90 But Petitioners still do not explain why either Applicants or NRCs articulation of the purpose of the project is unreasonable. Petitioners do not dispute that Applicants are asking NRC to approve the authority to resume power operations of a 800 MW facility that is capable of providing baseload power in a relatively short timeframe using already-constructed infrastructure.

Simply reiterating that Petitioners think NRC should have articulated the purpose of the project in broader terms is insufficient to show error in the Boards rejection of the argument as conclusory.91 Relatedly, the Appeal continues to assert that NRC was required to independently perform a need-for-power assessment to validate that there is a near-term need for the energy from Palisades.92 The Board rejected that argument because Petitioners did not identify any legal basis that requires NRC to conduct such an assessment, nor did Petitioners explain why such an evaluation would be material the Draft EAs findings.93 In their Appeal, Petitioners still do not identify any legal authority requiring NRC to perform need-for-power assessments. Instead, Petitioners misstated the record and claim that the ASLB accepts the NRC Staffs insufficient reliance on vague references to data centers and spikes in demand for electricity, none of which indicate any definitive agency expertise or factual determinations corroborating a need to plug Palisades back into the regional grid.94 Neither the Board, the Draft EA, nor Applicants referenced data centers causing spikes in demand for electricity. This language is from Petitioners 90 Appeal at 19-20.

91 See, e.g., Shieldalloy, CLI-07-20, 65 NRC at 503; PPL Susquehanna LLC, CLI-07-25, 66 NRC at 104.

92 See Appeal at 20-21.

93 Order at 16-17.

94 See Appeal at 21.

20 own pleading, not the Draft EA or the Order.95 Misattributing their own statements to the Board and the NRC does not provide a basis to overturn the Order, especially in light of the fact that need-for-power assessments are not required for post-construction licensing actions,96 and Applicants submittedand the Draft EA relies uponevidence that (i) Palisadess entire output has already been allocated, and (ii) the State of Michigan has determined that there is a need for additional generating capacity and that Palisades should supply that capacity.97 The Appeals repetition of Petitioners conclusory assertions, which remain unsupported by the record and legal precedent, is insufficient to demonstrate error in the Order. The Commission should reject Petitioners repetitive arguments and affirm the Boards dismissal of Amended Contention 5.

F. Petitioners Have Not Identified Any Error of Law or Abuse of Discretion in the Boards Bases for Rejecting Amended Contention 6 Amended Contention 6 asserted that the Draft EAs alternatives analysis violated NEPA because it is not supported by any facts or credible analysis.98 The Board dismissed Amended Contention 6 because Petitioners arguments were conclusory and failed to raise a genuine, 95 See New and Amended Contentions at 29-30.

96 Denial of Petition for Rulemaking, 68 Fed. Reg. 55,905, 55,910 (Sep. 29, 2003); 10 CFR §§ 51.53, 51.95.

97 See Environmental RAI Response, Encl. 18, Att. 1 at 18 (Holtec has entered a long-term power purchase agreement (PPA) with two rural, not-for-profit energy cooperatives - Wolverine Power and Hoosier Energy - who will purchase the plants emissions-free baseload generation. That agreement not only ensures the plants operational safety and reliability, economic viability, and debt service, but provides long-term price stability for an asset that is both baseload generation and supports the states clean climate goals.); HDI PNP 2023-028, Letter from J. Fleming, HDI, to NRC Document Control Desk, Application for Order Consenting to Transfer of Control of License and Approving Conforming License Amendments, Encl. 1 at 15 (Dec. 6, 2024) (ML23340A161) (Holtec Palisades has entered into a life-of-plant PPA with Wolverine and Hoosier for all Facility energy and capacity during the license term and any subsequent renewal terms. The pricing terms of the PPA are reflected in the proprietary Enclosure 3A. Wolverine and Hoosier are electric cooperatives that serve as their own rate-setting authority. They will recover amounts paid to Holtec Palisades under the PPA through tariff rates charged to their members, which members in turn collect all such costs from their retail ratepayers).

98 New and Amended Contentions at 30.

21 material dispute with the alternatives analysis that was actually presented in the Draft EA.99 The Appeal restates the same conclusory arguments the Board rejected, adding the claim that the Board ignored NEPA precedent, which is accompanied by a general citation to the hard look standard and a few assertions that the Board violated that standard100 but otherwise lacking any meaningful explanation as to why the Board misapplied NEPA or the Commissions admissibility standard in rejecting their contention. Indeed, most of this section of the Appeal repeats claims related to others contentionse.g., criticizing the purpose and need statement as too narrow, demanding that NRC conduct a need-for-power analysis, objecting to Michigans clean energy law, and continuing to assert that NRC was required to prepare a full EISrather than engaging with the Boards reasons for rejecting Amended Contention 6.

For example, the Appeal claims that the environmental impact from recommissioning a nuclear plant with thirty-five year old steam generators required a more thorough alternatives analysis.101 And, without evidence substantiating that the environmental impacts are conceivably small, the Commission must not permit a discussion of alternatives that presumes baseless conclusions presupposing the recommissioning of Palisades.102 These arguments revisit Contention 2 (claiming an EIS was required) and Contention 5 (claiming the purpose and need statement is too narrow) and just repeat the same kind of generalized claims the Board rejected.103 As the Order states, [w]ithout an explanation as to how the inclusion of additional (and also 99 See Order at 19, 21.

100 Appeal at 24.

101 Id.

102 Id. at 25.

103 Cf. Reply at 20 (The discussion of alternatives must be a serious investigation and analysis of all reasonable alternatives, and not merely a justification for the proposed project.); Order at 18-19 (these claims are inadmissible because they lack specificity[ and] are based on conclusory assertions...).

22 unspecified) information would make a material difference in the Staffs analysis, Petitioning Organizations have not met their burden to raise a genuine, material dispute with the Draft EAs alternatives analysis.104 The Appeal also repeats Petitioners criticisms that NRC omi[tted] any technical basis in its alternatives analysis and employed illusory and circular logic,105 but does not address the fact that the Board rejected these generalized arguments because they were not specific, ignored or misstated the record, and failed to engage with the actual contents of the Draft EA.106 Rather than explaining why the Board committed reversible error, the Appeal just recites the arguments the Board rejected. The Appeal claims nuclear energy is not clean and Michigan energy law is wrong but ignores the Boards holding that those policy arguments are out of scope.107 The Appeal claims a need-for-power analysis was required to support the Draft EAs review of alternatives but ignores the Boards determination that a need for power analysis is not required by NEPA and is not material to the Draft EAs findings.108 The Appeal claims constructing new facilities would be better than restarting Palisades109 but ignores the Boards rejection of that argument because Petitioning Organizations do not explain why it would be unreasonable for the Staff to conclude 104 Order at 20-21. Moreover, as noted in Section III.C supra, the SEIS found that operating Palisades through 2031 would have SMALL environmental effects, and the Draft EA concluded that the environmental effects of restarting the plant would be NOT SIGNIFICANT. Accordingly, NRC reasonably considered a limited range of alternatives.

Friends of Ompompanoosuc v. FERC, 968 F.2d 1549, 1558 (2d Cir. 1992) ([T]he range of alternatives an agency must consider is narrower when, as here, the agency has found that a project will not have a significant environmental impact.); River Rd. All., Inc. v. Corps of Eng'rs of U.S. Army, 764 F.2d 445, 452 (7th Cir. 1985) ([T]he smaller the impact, the less extensive a search for alternatives can the agency reasonably be required to conduct.).

105 Appeal at 25.

106 Order at 19-20.

107 See Appeal at 26-28; Order at 17-18.

108 See Appeal at 26.

109 Id. at 27.

23 that new construction on other sites could lead to significant environmental impacts.110 The Appeal claims NRC should have evaluated construction of other generation sources on the Palisades site but ignores the Boards rejection of that argument because the Draft EA actually did discuss alternative onsite generation, and Petitioners did not identify which alternative energy sources could be built on the Palisades site or explain how consideration of these alternatives would alter the Draft EAs analysis.111 The Appeal repeats conclusory, unsupported, and out of scope claims that the Board rejected but does not explain why the Board erred in rejecting them. The Commission should affirm the Boards dismissal of Amended Contention 6.

G. Petitioners Have Not Identified Any Error of Law or Abuse of Discretion in the Boards Bases for Rejecting New Contention 8 New Contention 8 asserted that the Draft EA must be completely redone because it incorporated documents by reference based on CEQ regulations that have been invalidated.112 The Board dismissed New Contention 8 because NRC has its own NEPA regulations and is not dependent on the ongoing efficacy of CEQ regulations to allow NRC to incorporate documents by reference.113 The Appeal asserts that NRCs regulations are irrelevant because the EA specifically 110 Order at 20.

111 Order at 19. Moreover, the Supreme Courts recent decision in Seven County Infrastructure Coalition v. Eagle County clarified that the NEPA analysis, even before the Fiscal Responsibility Act amendments (see note 89 supra),

must be focused on the proposed action--that is, the project at handnot other future or geographically separate projects that may be built (or expanded) as a result of or in the wake of the immediate project under consideration.

605 U.S. __, 145 S. Ct. 1497, 1515 (2025). The Court cautioned that NEPA does not automatically require an agency to consider the environmental effects of a separate project, because even if they may be factually foreseeable... that does not mean that those effects are relevant to the agencys decisionmaking process or that it is reasonable to hold the agency responsible for those effects. In those circumstances, the causal chain is too attenuated. Id., 145 S. Ct. at 1516 (internal citations omitted) (emphasis added).

112 New and Amended Contentions at 34.

113 See Order at 22; see also 10 CFR § 51.10(a) (providing that the regulations in 10 CFR Part 51 implement NEPA in a manner consistent with the NRCs domestic licensing and related regulatory authority under the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and the Uranium Mill Tailings

24 states that it is following the CEQ regulations.114 Putting aside the fact that Petitioners have not explained why any agency needs a regulation to authorize it to do something as basic as referencing other documents,115 the Petitioners are wrong that the Draft EA solely relied on CEQ regulations.

The Draft EA cited CEQ principles and NRCs own guidance document,116 which states, inter alia, that: Consistent with Title 10 of the Code of Federal Regulations (10 CFR) 51.95(a), the NRC staff may incorporate by reference any information contained in a final environmental document previously prepared by NRC staff that relates to the same facility.117 Moreover, CEQ advised other federal agencies that they will remain free to use or amend [CEQ] procedures, and agencies should, in defending actions they have taken, continue to rely on the version of CEQs regulations that was in effect at the time that they agency action under challenge was completed.118 Petitioners ignored all of this.

The Commission should affirm the Boards dismissal of New Contention 8 because Petitioners have offered no rational argument for why NRC cannot incorporate documents by Radiation Control Act of 1978, and [in a manner] which reflects the Commissions announced policy to take account of [CEQ] regulations voluntarily, subject to certain conditions).

114 Appeal at 30.

115 See generally Blue Mountains Biodiversity Project v. Jeffries, 99 F.4th 438, 452 (9th Cir. 2024) ([T]he whole administrative record [] consists of all documents and materials directly or indirectly considered by agency decision-makers[.]) (quoting Thompson v. U.S. Dept of Lab., 885 F.2d 551, 555 (9th Cir. 1989)); James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1095 (D.C. Cir. 1996) (The administrative record includes all materials compiled by the agency, that were before the agency at the time the decision was made.) (citations omitted).

116 See Draft EA 1-7 (citing NUREG-2249, Environmental Considerations for New Nuclear Reactor Applications that Reference the Generic Environmental Impact Statement for Licensing of New Nuclear Reactors at Appx A (ML24176A231)).

117 NUREG-2249, Environmental Considerations for New Nuclear Reactor Applications that Reference the Generic Environmental Impact Statement for Licensing of New Nuclear Reactors at Appx A, A-1 (ML24176A231) (citations omitted).

118 CEQ, Interim Final Rule, Removal of National Environmental Policy Act Implementing Regulations, 90 Fed. Reg.

10,610, 10,614 (Feb. 25, 2025).

25 reference, much less demonstrated that the Board committed reversible error in rejecting their contention to that effect.

IV.

Conclusion The Board correctly found that Petitioners New and Amended Contentions were inadmissiblea result that is further supported by the fact that the New and Amended Contentions were untimely. The Appeal fails to show that the Board erred or otherwise abused its discretion.

Accordingly, the Commission should affirm the Boards Order.

Respectfully submitted, Signed (electronically) by Alan D. Lovett BALCH & BINGHAM LLP 1710 Sixth Avenue North Birmingham, AL 35203-2015 (205) 251-8100 alovett@balch.com Executed in accord with 10 CFR § 2.304(d)

M. Stanford Blanton Grant W. Eskelsen Jason B. Tompkins BALCH & BINGHAM LLP 1710 Sixth Avenue North Birmingham, AL 35203-2015 (205) 251-8100 sblanton@balch.com geskelsen@balch.com jtompkins@balch.com COUNSEL FOR HOLTEC DECOMMISSIONING INTERNATIONAL, LLC AND HOLTEC PALISADES, LLC

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of:

)

Docket No.

50-255-LA-3

)

HOLTEC DECOMMISSIONING

)

INTERNATIONAL, LLC AND HOLTEC

)

PALISADES, LLC

)

)

Palisades Nuclear Plant

)

August 11, 2025

)

CERTIFICATE OF SERVICE Pursuant to 10 CFR § 2.305, I certify that on this date copies of the foregoing Brief in Opposition to Appeal were served upon the Electronic Information Exchange (the NRCs E-Filing System) in the above captioned matter.

Signed electronically by

/s/ Alan D. Lovett Alan D. Lovett BALCH & BINGHAM LLP 1710 Sixth Avenue North Birmingham, AL 35203-2015 Telephone: (205) 226-8769 E-mail: alovett@balch.com Date of Signature: August 11, 2025