ML25272A287
| ML25272A287 | |
| Person / Time | |
|---|---|
| Site: | Palisades  |
| Issue date: | 09/29/2025 |
| From: | Blanton M, Eskelsen G, Lovett A, Tompkins J Balch & Bingham, LLP, Holtec Palisades |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| RAS 57497, 50-255-LA-4 | |
| Download: ML25272A287 (0) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
)
In the Matter of:
)
)
HOLTEC PALISADES, LLC
)
Docket No. 50-255-LA-4
)
Palisades Nuclear Plant
)
September 29, 2025
)
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 PALISADES, LLC
i TABLE OF CONTENTS I.
Background and Procedural History................................................................................ 2 A.
Palisades Restart and the Current Licensing Basis................................................ 2 B.
The LAR.............................................................................................................. 4 C.
The Petition......................................................................................................... 5 D.
The Order............................................................................................................ 6 E.
The Appeal.......................................................................................................... 6 II.
Standard of Review on Appeal......................................................................................... 7 III.
Argument........................................................................................................................ 8 A.
The Board Applied the Correct Admissibility Standard and Properly Rejected Petitioners Claim that Notice Pleading is Sufficient............................................ 8 B.
The Board Properly Rejected Petitioners Out-of-Scope Arguments Regarding the General Condition of the Steam Generators................................. 11 C.
Petitioners Have Not Identified Reversible Error in the Boards Bases for Rejecting the Specific Arguments Discussed in the Appeal................................ 16
- i.
The Board Properly Rejected Petitioners Claim that Holtec Mismanaged the Steam Generators After Shutdown............................... 16 ii.
The Board Properly Rejected Petitioners Claim Regarding Chemical Hideout at the Tubesheet........................................................................ 19 iii.
The Board Properly Rejected Petitioners Claim Regarding Watts Bar Unit 2..................................................................................................... 20 iv.
The Board Properly Rejected Petitioners Claim that Sleeving Increases Stress on Tubes....................................................................... 21 IV.
Petitioners Failed to Establish Standing......................................................................... 25 V.
Conclusion.................................................................................................................... 27
ii TABLE OF AUTHORITIES STATUTES 42 U.S.C. § 2133....................................................................................................................... 12 COMMISSION DECISIONS Advanced Medical Systems, Inc. (One Factory Row),
CLI-94-06, 39 NRC 285 (1994).............................................................................................7 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),
CLI-08-23, 68 NRC 461 (2008)........................................................................................... 15 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),
CLI-08-28, 68 NRC 658 (2008)........................................................................................... 10 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),
CLI-09-7, 69 NRC 235 (2009)...............................................................................................9 Calvert Cliffs 3 Nuclear Project, LLC, (Calvert Cliffs Nuclear Power Plant, Unit 3),
CLI-09-20, 70 NRC 911 (2009)..................................................................................... 25, 26 Crow Butte Res., Inc. (Marsland Expansion Area),
CLI-14-02, 79 NRC 11 (2014)...............................................................................................7 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3),
CLI-04-36, 60 NRC 631 (2004)................................................................................... 7, 8, 14 Duke Energy Corp. (Catawba Nuclear Station, Units 1 and 2),
CLI-04-6, 59 NRC 62 (2004)............................................................................................... 14 Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3),
CLI-99-11, 49 NRC 328 (1999).............................................................................................9 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station),
CLI-12-14, 75 NRC 704 (2012)........................................................................................... 10 Exelon Generating Co., LLC (Peach Bottom Atomic Power Station, Units 2 & 3),
CLI-05-26, 62 NRC 577 (2005)........................................................................................... 26 FirstEnergy Nuclear Operating Co. (Beaver Valley Power Station, Units 1 and 2),
CLI-20-5, 91 NRC 214 (2020)............................................................................................. 26 FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1),
CLI-12-08, 75 NRC 393 (2012).............................................................................................8 Holtec Intl (HI-STORE Consolidated Interim Storage Facility),
CLI-20-04, 91 NRC 167 (2020)........................................................................................... 21 Hydro Res., Inc. (Crownpoint, NM),
CLI-06-29, 64 NRC 417 (2006)........................................................................................... 12 Interim Storage Partners LLC (WCS Consolidated Interim Storage Facility),
CLI-20-15, 92 NRC 491 (2020).............................................................................................7
iii Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
CLI-87-12, 26 NRC 383 (1987)........................................................................................... 15 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
CLI-90-8, 32 NRC 201 (1990)............................................................................................. 14 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1),
CLI-18-04, 87 NRC 89 (2018)............................................................................................. 22 Omaha Public Power District (Fort Calhoun Station Unit 1),
CLI-15-5, 81 NRC 329 (2015)............................................................................................. 15 PPL Susquehanna LLC (Susquehanna Steam Electric Station, Units 1 and 2),
CLI-07-25, 66 NRC 101 (2007).............................................................................................7 Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation),
CLI-05-8, 61 NRC 126 (2005)............................................................................................. 25 Pub. Serv. Co. of New Hampshire (Seabrook Stations, Units 1 and 2),
CLI-89-3, 29 NRC 234 (1989)............................................................................................. 18 Shieldalloy Metallurgical Corp. (Newfield, New Jersey Facility),
CLI-07-20, 65 NRC 499 (2007)....................................................................................... 7, 12 Southern Nuclear Operating Co., Inc. (Vogtle Elec. Generating Plant, Units 3 and 4),
CLI-17-02, 85 NRC 33 (2017)...............................................................................................7 Southern Nuclear Operating Co., Inc. (Vogtle Electric Generating Plant, Unit 3),
CLI-20-6, 91 NRC 225 (2020)............................................................................................. 26 Tex. Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 2),
CLI-93-10, 37 NRC 192 (1993)................................................................................. 7, 23, 24 USEC, Inc. (Am. Centrifuge Plant),
CLI-06-10, 63 NRC 451 (2006)................................................................................. 9, 10, 22 ATOMIC SAFETY AND LICENSING BOARD Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 & 2),
LBP-87-19, 25 NRC 950 (1987).......................................................................................... 14 Holtec Palisades, LLC (Palisades Nuclear Plant),
LBP-25-06, 101 NRC __ (slip op.) (Aug. 5, 2025)........................................................ passim Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation),
LBP-98-7, 47 NRC 142 (1998).................................................................................. 9, 10, 22 Southern Nuclear Operating Co., Inc. (Vogtle Elec. Generating Plant, Units 3 and 4),
LBP-16-5, 83 NRC 259 (2016)...................................................................................... 23, 25 Yankee Atomic Elec. Co. (Yankee Nuclear Power Station),
LBP-96-2, 43 NRC 61 (1996),....................................................................................... 10, 23 FEDERAL CASES Ashcroft v. Iqbal, 556 U.S. 662 (2009)........................................................................................8
iv Beyond Nuclear v. NRC, 704 F.3d 12 (1st Cir. 2013)............................................................. 9, 10 FEDERAL REGISTER Final Rule: Changes to Adjudicatory Process, 69 Fed. Reg. 2182 (Jan. 14, 2004)............. 10, 15 REGULATIONS 10 CFR 2.311..............................................................................................................................1 10 CFR 2.309..................................................................................................................... passim 10 CFR 2.714............................................................................................................................ 10 10 CFR 50.40............................................................................................................................ 12 10 CFR 50.92............................................................................................................................ 13 10 CFR 50.82............................................................................................................................ 25 RULES Fed. R. Civ. P. Rule 12.......................................................................................................... 8, 10
1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
)
In the Matter of:
)
)
HOLTEC PALISADES, LLC
)
Docket No. 50-255-LA-4
)
Palisades Nuclear Plant
)
September 29, 2025
)
HOLTEC PALISADES, LLC BRIEF IN OPPOSITION TO APPEAL In accordance with 10 CFR 2.311(b), Holtec Palisades, LLC (Holtec or Applicant) submits this brief in opposition to the Notice of Appeal1 filed on September 2, 2025 by Beyond Nuclear, Dont Waste Michigan, Michigan Safe Energy Future, Three Mile Island Alert, and Nuclear Energy Information Service (collectively, Petitioners). Petitioners appeal the Atomic Safety and Licensing Boards (Boards) August 5, 2025 decision in LBP-25-06,2 which denied Petitioners petition to intervene and request for adjudicatory hearing3 on Applicants license amendment request seeking approval to utilize sleeving as an acceptable method of repairing defective steam generator tubes (the LAR) at the Palisades Nuclear Plant (Palisades).4 1 Notice of Appeal of ASLB Decision LBP-25-06, 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 (Sept. 2, 2025) (ML25245A244) (Appeal).
2 Holtec Palisades, LLC (Palisades Nuclear Plant), LBP-25-06, 101 NRC __ (slip op.) (Aug. 5, 2025) (ML25217A522)
(Order).
3 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 (June 16, 2025)
(ML25178C909) (Petition).
4 PNP 2025-003, Letter from Holtec Palisades, LLC to NRC, License Amendment Request to Revise Selected Permanently Defueled Technical Specifications to Support Repairing of Steam Generator Tubes by Sleeving, (Feb.
11, 2025) (public: ML25043A348; proprietary: ML25042A691, ML25042A692). Petitioners were granted access to the proprietary version of the LAR; however, the Petition only references the public version.
2 The portions of the Appeal that engage with the Order only span a handful of pages and raise two overarching arguments: (1) the Board should have accept notice pleading as sufficient to admit Petitioners contention for hearing, and (2) the Board should have allowed Petitioners to litigate challenges to the general safety of the steam generators. The first argument has already been rejected by the Commission and federal courts. The Commissions 1989 pleading standard requires petitioners and their declarants to provide support for their factual claims and an explanation for why those claims present a dispute with the application on a material issue of law or fact. Petitioners assertion that licensing boards are not allowed to evaluate the basis for petitioners arguments, or whether those arguments raise a material issue of law or fact, is meritless. Petitioners second argument is that they should be allowed to litigate claims regarding the condition of the Palisades steam generators that are unrelated to the sleeving proposal in the LAR. Petitioners do not credibly dispute that their arguments are unrelated to NRCs review of the proposed sleeving repair method, and they have offered no legal basis for overturning the Boards determination that the scope of this proceeding is limited to the LAR that initiated it.
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 A.
Palisades Restart and the Current Licensing Basis This is the third appeal Petitioners have filed in connection with their opposition to the Palisades restart.5 Holtec will not repeat the full licensing history of the Palisades restart, as it has 5 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 LARs Appeal); 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) (Amended Contention Appeal).
3 been presented to the Commission in prior briefing.6 For the purposes of this Appeal, it suffices to say that, on August 25, 2025, following NRC staffs issuance of a series of orders on July 24, 2025, Holtec implemented a suite of licensing actions to transition Palisades from decommissioning status back to operating reactor status.7 One of the license amendments implemented on that date reinstated the Technical Specifications that governed power operations prior to the plants shutdown in 2022.8 These Technical Specifications include several sections that address the operation and maintenance of Palisadess two steam generators, including primary-to-secondary leakage, performance criteria, steam-generator inspections, and authorized means to address defective tubes.9 As of the date above, Palisades has not yet resumed generating power under the reinstated Technical Specifications.10 Holtec continues to perform operational readiness activities and NRC 6 See Holtec Decommissioning International, LLC and Holtec Palisades, LLC Brief in Opposition to Appeal at 2-5 (May 20, 2025) (ML25140A977) (Opposition to Original LARs Appeal); Holtec Decommissioning International, LLC and Holtec Palisades, LLC Brief in Opposition to Appeal (August 11, 2025) (ML25223A332) at 2-5 (Opposition to Amended Contention Appeal.).
7 See PNP 2025-064, Letter from Holtec Palisades, LLC to NRC, Rescission of Certifications of Permanent Cessation of Operations and Permanent Removal of Fuel from the Reactor Vessel, (Aug. 25, 2025) (ML25237A317)
(Rescission Letter).
8 See 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, (Dec. 14, 2023) (ML23348A148).
9 See, e.g., Letter from J. Poole, NRC, to J. Fleming, Holtec International, LLC, Palisades Nuclear Plant - Issuance of Amendment No. 276 Re: Amendment Request to Revise Renewed Facility Operating License and Permanently Defueled Technical Specifications to Support Resumption of Power Operations (EPID L-2023-LLA-0174), (July 24, 2025) (ML25157A107) (Tech Specs. Order) Encl. 1, Attachment Appendix A, Technical Specifications 3.4.17 (Steam Generator (SG) Tube Integrity); Tech Spec 5.5.8 (Steam Generator (SG) Program) (reinstating Steam Generator Program, including inspections and repair criteria).
10 See generally Holtec Palisades letter to NRC, Palisades Nuclear Plant - Notification of Readiness for Transition to Power Operations Licensing Basis, Encl. at 2-3, 5 (July 1, 2025) (ML25182A066) (Transition Letter) (Palisades Nuclear Plant will initially enter a No Mode status under the power operations Technical Specifications because no operational Modes apply to the current defueled state. This status will allow Palisades Nuclear Plant to receive, possess, and use source and special nuclear material as reactor fuel in accordance with the power operations licensing basis). Palisades Technical Specification 3.4.17 requires that steam generator integrity be maintained and all tubes satisfying the repair criteria meet the applicable requirements of the Steam Generator Program when Palisades is in Modes 1, 2, 3, and 4.
4 continues to conduct inspections under the reinstated power operations licensing basis to ensure that, when Palisades descends modes (e.g., loads fuel, begins reactor operation), the plant does so in compliance with the power operations Technical Specifications, including those that govern the steam generators. Toward that end, Holtec has submitted the LAR and two additional license amendment requestsbeyond the original suite that were approved July 24, 2025to address changes in the plant following its 2022 shutdown and the status and schedule of various recommissioning activities.11 These additional license amendment requests do not seek approval to restart or operate the plant. NRC already approved the reinstated licensing basis that authorizes power operations. Rather, these amendments seek to modify discrete portions of the Palisades licensing basis in the same manner as any other license amendment for an operating reactor.
B.
The LAR The LAR seeks NRC approval to utilize sleeving to repair defective steam generator tubes (defective meaning the tubes meet the criteria specified defined in the Palisades Technical Specifications) at the tube support plate.12 The only method of addressing defective tubes in the current Technical Specifications is removal from service via plugging. The LAR includes technical justification to demonstrate that tubes can be repaired via insertion of Alloy 690 sleeves inside the 11 LAR; Letter from J. Fleming, Holtec, to NRC Document Control Desk, License Amendment Request to Include Leak Before Break Methodology for Primary Coolant System Hot and Cold Leg Piping in Palisades Licensing Basis, (Feb. 5, 2025) (ML25035A216) (LBB LAR); and Letter from J. Fleming, Holtec, to NRC Document Control Desk, License Amendment Request to Change the Full Compliance Date for the Fire Protection Program Transition License Condition for Required Modifications, (June 24, 2025) (ML25175A275). The NRC approved the LBB LAR on August 26, 2025. Letter from J. Poole, NRC, to Site Vice President, Palisades Energy, LLC, Palisades Nuclear Plant
- Issuance of Amendment No. 280 Re: Leak-Before-Break Methodology for Primary Coolant System Hot and Cold Leg Piping (EPID L-2025-LLA-0027), (Aug. 26, 2025) (ML25211A228).
12 See Tech Specs Order, Encl. 1, Attachment Appendix A, Technical Specifications 5.5.8(c) (requiring that tubes found by inservice inspection with flaws with a dept equal to or exceeding 40% of the nominal wall thickness to be plugged).
5 tube while maintaining applicable safety standards.13 The LAR includes conforming changes to the Technical Specifications to reflect the availability of repair (in addition to plugging), but does not otherwise modify the portions of the Palisades licensing basis that govern the steam generators.14 C.
The Petition The Petition included one contention asserting that the Palisades steam generators cannot be repaired and must be replaced because the steam generators are too extensively damaged and sleeving puts extra stress on the tubes, making them more likely to fail.15 The Petition was accompanied by a declaration from Mr. Arnold Gundersen.16 Mr. Gundersens declaration offered a number of claims regarding the condition of the steam generators, including the following which are revisited in the Appeal: (1) Holtecs failure to place the steam generators in wet layup after shutdown caused the degradation to the steam generators, (2) chemical corrosion resulting from Holtecs failure to place the steam generators in wet layup fatally compromised the steam generators, (3) sleeving increases stress on the tubes, (4) the tests Framatome (Holtecs vendor) performed to demonstrate the adequacy of the sleeving methodology were insufficient, and (5) 13 See generally Letter from M. Wentzel, NRC, to J. Barstow, TVA, Watts Bar Nuclear Plant, Unit 2 - Issuance of Amendment No. 40 Regarding Technical Specifications for Steam Generator Tube Repair Sleeve (EPID L-2019-LLA-0209), Encl. 2, Safety Evaluation, at 5-7 (Aug. 10, 2020) (ML20156A018) (TVA Safety Evaluation)
(summarizing the regulatory requirements applicable to steam generator tube sleeving, including those governing the integrity and inspection of the reactor coolant pressure boundary).
14 Cf. LAR, Encl. 1 at 5; id. at Encl. 2 (mark up of Technical Specifications 5.5.8(a) (requiring condition monitoring of the steam generator tubes); 5.5.8(b)(1) (specifying performance criteria for steam generator tube integrity during normal operating conditions and design basis accidents); 5.5.8(b)(2) & (3) (specifying leakage performance criteria for accidents and operational modes, respectively); and 5.5.8(d) (specifying criteria for steam generator tube inspections)).
15 Petition at 19.
16 Id. at Exhibit B, Declaration of Arnold Gundersen in Support of Petition to Intervene and Request for Adjudicatory Hearing Opposing Steam Generator Restoration by Michigan Safe Energy Future, Dont Waste Michigan, Nuclear Energy Information Service, Three Mile Island Alert, and Beyond Nuclear (Gundersen Decl.).
6 TVAs replacement of the Watts Bar Unit 2 steam generators dictates that NRC should require Holtec to replace the Palisades steam generators.17 D.
The Order The Board found that Petitioners have representational standing but that their sole contention is inadmissible.18 Specifically, the Board explained that the scope of this proceeding is limited to the relief requested by the LAR; i.e., whether the process of sleeving tubes at tube support plates should be allowed as a repair option.19 Accordingly, the Board rejected Petitioners general claims that the steam generators must be replaced as beyond the scope of the proceeding.20 Similarly, the Board rejected Petitioners arguments that Holtec mismanaged the steam generators after shutdown because Petitioners did not show why that point is material to NRCs evaluation of the sleeving methodology proposed in the LAR.21 The Board dismissed the remainder of Petitioners claims because they either lacked the requisite factual and legal support or failed to raise a material dispute with the LAR.
E.
The Appeal The Appeal offers two overarching arguments in response to the Boards decision.
Petitioners claim that (1) the Board misapplied the contention admissibility standard by requiring Petitioners to prove the merits of their case at the outset, and (2) the Board improperly limited the scope of the proceeding to just sleeving rather than the general safety of the steam generators.
Neither argument provides a basis for overturning the Order, as the following sections explain.
17 Id. at 19-26.
18 Order at 2.
19 Id. at 16.
20 Id. at 15-16.
21 Id. at 17 (Petitioners have offered no technical reason why the efficacy of sleeving is dependent on who damaged the tubes or on when such damage happened.).
7 II.
Standard of Review on Appeal In reviewing appeals from licensing boards admissibility determinations, the Commission will defer to [such] rulings... unless an appeal demonstrates an error of law or abuse of discretion.22 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.23 Appeals that simply repeat or add to previous claims are insufficient to show error.24 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.25 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.26 The question before the Board was whether Petitioners contention satisfied the requirements of 10 CFR 2.309. Section 2.309(d)(1) required Petitioners to demonstrate standing while section 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, supported by meaningful 22 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).
23 Advanced Medical Systems, Inc. (One Factory Row), CLI-94-06, 39 NRC 285, 297 (1994).
24 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).
25 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).
26 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-04-36, 60 NRC 631, 639 (2004).
8 factual and expert support.27 A contention that fails to comply with even one of the section 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 III.
Argument A. The Board Applied the Correct Admissibility Standard and Properly Rejected Petitioners Claim that Notice Pleading is Sufficient The Appeal claims the Board erred by requiring Petitioners to present enough evidence to prove the merits of their contentions at the admissibility stage.30 Petitioners base this claim on their view that the section 2.309(f) standard is a lenient notice pleading standard akin to the Federal Rule of Civil Procedure 12(b)(6) standard that applies to motions to dismiss in U.S. district courts.31 Such a standard would require licensing boards to accept[] all factual allegations in the complaint as true and draw[] all reasonable inferences in favor of the plaintiff, to enable petitioners to proceed to discovery to develop the facts of their case.32 This is the third time Petitioners have presented this argument to the Commission in connection with the Palisades restart.33 Holtec has responded in prior briefing to the Commission but will briefly respond again.34 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 Appeal at 8.
31 Id.
32 Id. at 8-9 (citing Fed. R. Civ. P. Rule 12(b)(6) and Ashcroft v. Iqbal, 556 U.S. 662 (2009)).
33 Original LARs Appeal at 11-12; Amended Contention Appeal at 18-19.
34 See Opposition to Original LARs Appeal at 12-15; Opposition to Amended Contention Appeal at 10.
9 Petitioners argument that section 2.309(f) only requires notice pleading has been explicitly rejected by the Commission and federal courts.35 As the Board explained in the Order, [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... [and]... contentions must be based on a genuine material dispute, rather than mere disagreement with an application.36 Petitioners asserted error is that the Board actually examined the conclusions stated in Mr. Gundersens declaration to determine whether those conclusions were explained and supported by the material Mr. Gundersen cited, and whether Mr. Gundersens claims actually raise a genuine dispute on a material issue of law or fact. This standard is consistent with the Commissions revisions to its contention admissibility rules in 1989 and 2004, which were specifically meant to bar poorly pled and unsupported contentions, and which has been reinforced many times since then: [T]he Board is not to accept uncritically the assertion that a document or other factual information or an expert opinion supplies the basis for a contention.37 A bald assertion that a matter ought to be considered or that a factual dispute exists
... is not sufficient, rather a petitioner must provide documents or other factual information or expert opinion to show why the proffered bases support [a] contention.38 [A]n expert opinion that merely states a conclusion (e.g., the application is deficient, inadequate, or wrong) 35 See AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 275 (2009)
([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); Beyond Nuclear v. NRC, 704 F.3d 12, 21 (1st Cir. 2013) (Materials cited as the basis for a contention are subject to scrutiny by the board to determine whether they actually support the facts alleged; otherwise, the aims of the rules and of Congress would be thwarted.).
36 Order at 8-9 (citing Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 334 (1999); USEC, Inc. (Am. Centrifuge Plant), CLI-06-10, 63 NRC 451, 480 (2006)).
37 Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), LBP-98-7, 47 NRC 142, 181 (1998), affd, CLI-98-13, 48 NRC 26 (1998).
38 Id.at 180.
10 without providing a reasoned basis or explanation for that conclusion is inadequate because it deprives the Board of the ability to make the necessary, reflective assessment of the opinion and whether it provides a basis for the contention.39 Bare assertions and speculation, even by an expert, are insufficient to trigger a full adjudicatory proceeding.40 We expect our licensing boards to examine cited materials to verify that they do, in fact, support a contention.41 Supporting material provided by a petitioner is subject to scrutiny both for what it does and does not show.42 Petitioners argument on appeal that the Board was not allowed to evaluate their claims as part of its contention admissibility determination mischaracterizes the Commissions 1989 rulemaking43 and ignores Commission caselaw and rulings from federal courts that have explicitly rejected their argument.44 The Board did not require Petitioners to prove their claims on the merits. But to obtain an evidentiary hearing, petitionersand their declarantsmust do more than mere notice pleading. They must explain why their arguments identify an issue relevant to the licensing action at issue, they must cite documents that actually support their arguments, and 39 USEC, CLI-06-10, 63 NRC at 472 (quoting Private Fuel Storage, LBP-98-7, 47 NRC at 181).
40 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-14, 75 NRC 704, 714 (2012) (quoting AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-28, 68 NRC 658, 674 (2008)).
41 Am. Centrifuge Plant, CLI-06-10, 63 NRC at 457.
42 Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), LBP-96-2, 43 NRC 61, 90 (1996), revd in part on other grounds, CLI-96-7, 43 NRC 235 (1996); see also Beyond Nuclear, 704 F.3d at 21 (Materials cited as the basis for a contention are subject to scrutiny... to determine whether they actually support the facts alleged.).
43 Petitioners claim that the 1989 rulemaking only required a petitioner to include some alleged facts in support of its petition, and the factual support necessary to show that a genuine dispute exists... need not be of the quality necessary to withstand a summary disposition motion. Appeal at 9-10. Petitioners conclude that the formal Commission policy is clearly not to use the threshold stage of an intervention petition as a place for dispositive litigation on the merits. Appeal at 10. But as the Board correctly noted, the discussion in the Statements of Consideration cited by Petitioners is inapposite here. It concerned, not the Section 2.714(b)(2) genuine dispute on a material issue of flaw or fact standard that was incorporated into section 2.309(f)(1)(iv) in 2004, but rather the adoption of a separate section (specifically 2.714(d)(2)(ii) that arguably paralleled Fed. R. Civ. P. Rule 12(b)(6)[)].
But Petitioners are in error in attempting to suggest that this separate standard has any relevance to the application of section 2.309(f)(1)(iv) because that language in section 2.[714](d)(2)(ii) was not incorporated into the section 2.309(f)(1) contention admissibility standards in 2004. Order at 9-10 (citing Final Rule: Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2238-40 (Jan. 14, 2004)(2004 Adjudicatory Process Rule)).
44 See note 35 supra.
11 they must clearly articulate why those arguments present a material dispute with the application that is before the NRC. That is what the Board found that Petitioners and Mr. Gundersen failed to do.45 The Board did not err by holding them to the standard the Commission established in 1989 and has reiterated many times in the decades since.
B.
The Board Properly Rejected Petitioners Out-of-Scope Arguments Regarding the General Condition of the Steam Generators The Appeal claims that the Board erred by limiting the scope of the adjudicatory proceeding to the sleeving repair proposed by the LAR46in the process rejecting many of Petitioners claims that did not dispute the efficacy of sleeving, but instead sought to establish that the Palisades steam generators are unsafe, whether tubes are sleeved or not.47 The Appeal repeats the argument Petitioners raised in their reply brief: the Palisades restart and the Atomic Energy Act (AEA) are both mentioned in the Federal Register Notice, therefore the overall safety of the 45 See Order at 8-10.
46 Appeal at 20 ([t]he ASLB mischaracterized the scope of the sleeving LAR proceeding when it ruled that Petitioners contention that replacement of the steam generators instead of sleeving the tubes is beyond the scope of this proceeding...). The Board found that the scope of this proceeding, as defined by the hearing notice, concerns one narrow issue: whether the NRC Staff should grant the LAR to revise the facilitys technical specifications to allow for the use of Framatome Alloy 690 sleeves to repair the defective steam generator tubes [at the Tube Support Plates] as an alternative to removing the tubes from service by plugging. Order at 15 (citations omitted).
47 See, e.g., Order at 15 (That claim [in Contention 1] asserts that Holtec must replace the steam generators at Palisades before restarting operations. This assertion derives from Petitioners conviction that all tubes, whether sleeved or unsleeved, have degraded, and will continue to degrade, to such an extent that they will suffer extensive corrosion upon restart, and so the only viable option is the total replacement of the steam generators themselves. But replacement of the steam generators is not a matter permissibly at issue in this proceeding.) (internal citation omitted);
id. at 18 (Petitioners are concerned that purportedly corrosive chemicals are present in the steam generators and that such chemicals will accumulate between the tubes and the tubesheet.); id. at 26 (While not explicitly included in Contention 1, the Gundersen Declaration suggests that once steam generator tubing is plugged, it cannot be safely unplugged and then sleeved. Mr. Gundersen refers to a Reuters article in his Declaration as the basis for this assertion.
However, Mr. Gundersen does not cite to any portion of the LAR in which Holtec seeks to unplug plugged tubes and then sleeve them....) (internal citations omitted).
12 plant is subject to litigation in this proceeding.48 Simply repeating arguments that were previously raised, and for the first time in a reply, does not provide any basis to overturn the Order on appeal.49 Even considering the argument, it is contrary to precedent and common sense. It would allow petitioners arguments, rather than the application submitted to NRC, to define the scope of adjudicatory hearingsin the process eliminating 10 CFR 2.309(f)(1)(iv) and (vi), which require contentions to raise issues material to NRCs findings on the action that is involved in the proceeding and raise a genuine dispute with the licensee by referring to specific portions of the application... that the petitioner disputes.50 Petitioners do not dispute that sleeving is the only change requested by the LAR. Nor have Petitioners raised a contention of omission by claiming that the LAR lacks information that is required to demonstrate that the sleeving methodology satisfies the applicable safety requirements.51 Petitioners argument for why replacement of the steam generators should be litigated in this proceeding is: both the restart and the AEA are mentioned in the Federal Register Notice,52 the AEA prevents NRC from issuing an amendment if it would be inimical to the common defense and security or to the health and safety of the public,53 and, therefore, the scope of this proceeding is governed ultimately by the AEA mandate to protect public health and safety,54 which means that [t]he adequacy of maintenance of the steam generators... is 48 Petitioning Organizations Combined Reply to Answers Filed by NRC Staff and Holtec to the Petition to Intervene (July 18, 2025) (ML25199A243) at 13-15 ; Appeal at 16-17, 19.
49 Shieldalloy, CLI-07-20, 65 NRC at 503; see also Hydro Res., Inc. (Crownpoint, NM), CLI-06-29, 64 NRC 417, 421 (2006) (the Commission will not consider arguments or legal theories raised for the first time on appeal or in a reply).
50 10 CFR 2.309(f)(1)(iv), (vi).
51 Cf. 10 CFR 2.309(f)(1)(vi) ([I]f the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioners belief.).
52 Appeal at 16-17, 19.
53 Id. at 19 (citing 42 U.S.C. § 2133(d); 10 CFR 50.40).
54 Id. at 20.
13 implicitly encompassed within the scope of the LAR.55 I.e., Petitioners logic is: the LAR supports the restart, restarting the plant is unsafe, therefore the LAR is unsafe (regardless of whether sleeving is) and arguments related to the safety of the restart are litigable in this proceeding, even if those arguments have nothing to do with the LAR.56 But 10 CFR 50.92 requires that the NRC find that issuance of the amendment in question (i.e., allowing sleeving) would not be inimical to the common defense and security or public health and safety. The LAR does not authorize Holtec to restart the plant or operate the steam generators.
The LAR allows Holtec to sleeve steam generator tubes that would otherwise have to be plugged.
Of course, NRC has, and will continue to, evaluate the condition of Palisades equipment, including the steam generators,57 to ensure the plant can safely return to service in accordance with its licensing basis. Indeed, the NRC empaneled a restart working group and crafted a restart inspection program to do precisely that.58 And NRC will continue to oversee the facilitys compliance with its licensing basis under the reinstated Reactor Oversight Process.59 If Petitioners were correct, and 55 Id. at 19.
56 See, e.g., id. at 19 (The scope of the LAR transcends the mechanical question of adding sleeves to steam generator tubes by implicating the health and safety considerations that must be addressed in order for the LAR to be permitted by the NRC.).
57 See, e.g., Palisades Nuclear Plant - Restart Inspection Report 05000255/2024011 (July 15, 2024) (ML24197A185);
Palisades Nuclear Plant - Restart Inspection Report 05000255/2024012 (Nov. 12, 2024) (ML24317A041); Palisades Nuclear Plant - Restart Inspection Report 05000255/2024013 (Jan 24, 2025) (ML25024A083); Palisades Nuclear Plant - Restart Inspection Report 05000255/2025001 and 07200007/2024001 (Mar. 26, 2025) (ML25083A268);
Palisades Nuclear Plant - Restart Inspection Report 05000255/2025002 (May 21, 2025) (ML25140A945); Palisades Nuclear Plant - Restart Inspection Report 05000255/2025003 (July 17, 2025) (ML25197A764); Palisades Nuclear Plant - Restart Inspection Report 05000255/2025004 (Sep. 17, 2025) (ML25260A036) (Sept. Inspection Report).
58 See NRC, Palisades Nuclear Plant Restart Inspection Plan, Light-Water Reactor Inspection Program for Restart of Reactor Facilities Following Permanent Cessation of Power Operations, Inspection Manual Chapter 2562 (Aug. 20, 2024) (ML24228A195); Letter from A. Nguyen, NRC, to M. Mlynarek, Holtec, Updated Restart Inspection Activity Plan for Palisades Nuclear Plant, (Aug. 21, 2025) (ML25232A205); IMC 2562, Light-Water Reactor Inspection Program for Restart of Reactor Facilities Following Permanent Cessation of Power Operations (Apr. 24, 2025)
(ML25017A231) (IMC 2562).
59 Memorandum to Office of Nuclear Reactor Regulation (NRR) Director and Region III Administrator, Transition to Operational Status and to the Reactor Oversight Process for Palisades Nuclear Plant, (July 18, 2025)
14 the steam generators were so degraded that they could not be repaired in a manner that will enable operation in accordance with the Technical Specifications, then Holtec could not operate the steam generators in such a condition whether NRC approves the LAR or not.
But NRC is not required to make, and is not making, any of those determinations in its review of the LAR. The LAR does not provide an open-ended opportunity to conduct an omnibus hearing on plant operations, the condition of plant equipment, business decisions regarding repair or replacement of the steam generators, future compliance with the licensing basis, the adequacy of NRCs oversight of the Palisades restart, or portions of the licensing basis that are not changing.60 The only findings the NRC must make to grant the LAR is whether the steam generator tubes can be safely sleeved using the methodology proposed in the LAR.61 It is NRCs inspection and oversight process that will ensure that the Palisades steam generators are returned to service and operated in a manner that complies with the Technical Specifications (whether they are (ML25147A274); Sept. Inspection Report at 1 (On August 25, 2025, the NRC transitioned oversight of Palisades to the Reactor Oversight Process (ROP).).
60 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3), CLI-08-17, 68 NRC 231, 237-38, (2008) (rejecting as inadmissible a contention that alleged the NRC staffs review of a power uprate license amendment was not also sufficiently rigorous.); see Duke Energy Corp. (Catawba Nuclear Station, Units 1 and 2),
CLI-04-6, 59 NRC 62, 74 (2004); Rockwell International Corp. (Rocketdyne Division), ALAB-925, 30 NRC 709, 721-22 (1989) (adjudicatory boards are not authorized to direct the staff in performance of [its] administrative functions.); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-785, 20 NRC 848, 884 (1984) (finding the business prudency of a planned action is the responsibility of the licensees management or shareholders, not a NRC adjudicatory board); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
CLI-90-8, 32 NRC 201, 207 (1990) ([N]owhere in our regulations is it contemplated that the NRC would need to approve of a licensees decision that a plant should not be operated. Indeed, except in highly unusual circumstances not present here (see sections 108, 186(c), and 188 of the Atomic Energy Act), the NRC lacks authority to direct a licensee to operate a licensed facility.); Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 &
2), LBP-87-19, 25 NRC 950, 951 (1987) (the NRC has adjudicatory jurisdiction solely for the hearing noticed in the Federal Register, but not for any future proceeding founded on new applications).
61 Cf. TVA Safety Evaluation at 5-6 (summarizing the applicable regulatory criteria for a similar sleeving license amendment, which include a finding that the issuance of the amendment will not be inimical to the common defense and security or the health and safety of the public. (emphasis added)).
15 amended or not).62 That process is not subject to adjudication in this proceeding. Challenges to the adequacy of the NRC staffs inspection processes or safety reviews are inadmissible in a licensing proceeding,63 as are contentions that seek to impose requirements that go beyond the current regulatory scheme.64 In focusing on their disagreement with the Boards scope determination, the Appeal ignores (apart from their overarching claim that notice pleading should be sufficient) the fact that the Board also found Petitioners underlying factual claims for why the steam generators should be replaceddue to alleged chemical corrosion that has fatally damaged the steam generatorsto be unsupported.65 Contentions must satisfy all 2.309(f)(1) criteria to be admissible. Accordingly, even if Petitioners argument that the steam generators are too damaged to operate were in scope, Petitioners have not demonstrated error in the Boards rejection of their factual arguments as unsupported, and so the outcome remains the same.
For the foregoing reasons, the Board properly rejected Petitioners claims regarding the general unsafe condition of the steam generators as both out of scope and unsupported. Petitioners have not identified any reversible error, and the Commission should affirm the Order.
62 Even in the inspection and oversight context, NRC cannot require Holtec to replace the steam generators or submit a different license amendment request proposing different modifications to the Technical Specifications to address different problems Petitioners claim to exist with the steam generators. Limerick, ALAB-785, 20 NRC at 884 (finding that a licensing board is without legal predicate to dictate to [a licensee] that it must pursue certain options as a petitioners urged changes were a matter for the [licensees] management, and possibly its shareholders, to decide).
In addition, [t]he NRC has not, and will not, litigate claims about the adequacy of the Staffs safety review in licensing adjudications. AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-23, 68 NRC 461, 476 (2008) (citing 2004 Adjudicatory Process Rule, 69 Fed. Reg. at 2202).
63 Oyster Creek, CLI-08-23, 68 NRC at 476 ; Omaha Public Power District (Fort Calhoun Station Unit 1), CLI-15-5, 81 NRC 329, 334 (2015) (Staff inspections and CALs, in and of themselves, are oversight activities normally conducted for the purpose of ensuring that licensees comply with existing NRC requirements and license conditions and, therefore, do not typically trigger the opportunity for a hearing under the AEA.) (citations omitted).
64 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-87-12, 26 NRC 383, 395 (1987).
65 Order at 20.
16 C.
Petitioners Have Not Identified Reversible Error in the Boards Bases for Rejecting the Specific Arguments Discussed in the Appeal The above two argumentsthat the Board applied too stringent a pleading standard and improperly limited the scope of the proceedingare the principal bases for Petitioners Appeal.
However, the last few pages of the Appeal address four specific points raised in the Petition and rejected by the Board. Most of these sections simply rehash Petitioners above two arguments, but Applicant will briefly addresses each of the four points below.
i.
The Board Properly Rejected Petitioners Claim that Holtec Mismanaged the Steam Generators After Shutdown The Board rejected Petitioners arguments that Holtec mismanaged the steam generators by failing to put them into wet layup because Petitioners have offered no technical reason why the efficacy of sleeving is dependent on who damages the tubes or on when such damage happened.66 The Appeal disputes this determination because, they assert, Mr. Gundersen actually did establish that Holtecs mismanagement impaired the efficacy of the sleeves.67 This claim misstates the record and does not articulate a coherent argument for reversing the Board.
As the Board found, neither the Petition nor Mr. Gundersens declaration related the various criticisms associated with Holtecs management of the steam generators back to the sleeving methodology proposed by the LAR. Rather, Petitioners argument in the Petition, which is repeated in this section of the Appeal, is that the overall safety of the steam generators is subject to adjudication in this proceeding, so the Board should have considered Petitioners arguments that Holtec negligently damaged the steam generatorsnot because the Holtecs failure to place the steam generators in wet layup made sleeving more or less effective, but because sleeving will not 66 Order at 17.
67 Appeal at 21.
17 fix the other problems alleged by Petitioners.68 I.e., this is another iteration of Petitioners scope argument, which Holtec has addressed above.
The Appeal nevertheless cites four pages of Mr. Gundersens declaration that, according to the Appeal, demonstrate that Holtecs mismanagement made the use of sleeves... much more problematic.69 Three of the four pages simply include Mr. Gundersens opinion that the steam generator tubes are degraded because of Holtecs mismanagementwith no discussion of sleeving, the LAR, or why the cause of degradation is relevant to whether sleeving can be used to repair it.70 Page 18 of Mr. Gundersens declaration includes two sentences that state: (1) tube damage is due to stress corrosion cracking from chemical deposition in cold water, and sleeving increases stress in the tube, and (2) further complications arise from the chemical-induced corrosion on both the primary side of the reactor itself as well as in the secondary system of the steam generators that also has been contaminated by chemically corrosive water permeating the reactor water (primary system) and the steam generator (secondary system).71 The Appeal does not actually articulate an argument for why these statements were sufficient to connect the allegations of Holtecs mismanagement back to the sleeving methodology in the LAR.72 Even assuming Petitioners intended, via citation to this page of Mr. Gundersens Declaration, to assert that the Board committed reversible error, these two sentences do not actually say what Petitioners 68 Id. (NRC must make a finding as to whether sleeving is a proper and appropriate means of addressing the question of widespread corrosion in the tubes, and pursuant to the AEA, whether sleeving protects public health and safety.
(emphasis added)).
69 Id. (citing Gundersen Decl. at 6, 13, 16, 18).
70 See Gundersen Decl. at 6, 13, 16.
71 Id. at 18.
72 See note 25 supra. 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.
18 cited them for. Mr. Gundersens claim that sleeving increases stress in the tubes did not include any claim that sleeving tubes that were not maintained in wet layup is more problematic than sleeving tubes that were damaged via other means.73 Mr. Gundersen also does not specify what further complications will arise from Holtecs failure to put the steam generators in wet layup.74 If Petitioners intended to assert that the complication was an adverse effect on the sleeving process itself, they did not clearly present that argument in the Petition. Accordingly, the Board did not err in finding the arguments they did present to be unrelated to the efficacy of sleeving.75 Petitioners have not offered any argument for why the Board erred in finding that they failed to establish the relevance of their claims related to Holtecs negligence to the LAR. Their actual dispute is with the Boards determination that the overall safety of the steam generators is beyond the scope of this proceeding. Nothing in the Appeal (or the record as it was presented to the Board) calls into question the Boards determination that Petitioners have offered no technical reason why the efficacy of sleeving is dependent on who damages the tubes or on when such damage happened.76 73 As stated in Applicants pleadings, and as emphasized by the Board in its Order, Applicant does not dispute that the plant did not maintain normal operational layup conditions immediately after shutdown. See Order at 16 ([t]here is no dispute that, immediately after the plant was shut down, Holtec did not manage the plant as if it were in a normal refueling outage by, among other things, maintaining operational [wet] layup conditions in the steam generators.)
(quoting Applicants Answer Opposing Beyond Nuclear et al.s Petition to Intervene and Request for Hearing at 18 (July 11, 2025) (ML25192A253) (Applicants Answer)).
74 Note also that, while the Appeal does not dispute this determination, the Order also rejected Mr. Gundersens claim that chemical corrosion will weaken all steam generator tubes. Order at 19 (Petitioners mere assertion that chemical effects will weaken all tubes upon restart fails to raise a genuine dispute with the LAR on an issue of material fact.).
75 The Commission expects parties to bear their burden and to clearly identify the matters on which they intend to rely with reference to a specific point. Pub. Serv. Co. of New Hampshire (Seabrook Stations, Units 1 and 2), CLI 3, 29 NRC 234, 241 (1989) (citations omitted) (emphasis added).
76 Order at 18.
19 ii.
The Board Properly Rejected Petitioners Claim Regarding Chemical Hideout at the Tubesheet The Appeal next disagrees with the Boards rejection of their related claim that Holtecs failure to place the steam generators in wet layup created chemical hideout in the tube-to-tubesheet crevasses.77 The Board rejected these claims because Petitioners did not demonstrate that hideout in the tubesheet affects the efficacy of the sleeving requested by the LAR, which would occur at the tube support plate, not the tubesheet.78 [T]he LAR is not intended to address defects in the tubesheet, so the argument did not raise a genuine dispute with the LAR on an issue of material fact.79 The Board also found that Petitioners fail to offer any factual or expert support regarding the presence of chemical effects they claim would further degrade tubes during operations.80 In response, the Appeal agrees that chemical hideout is not repaired by sleeving the tubes, but argues that the Board ignores the fact that the point of the LAR, as expressed in the Federal Register for the hearing, is that the proposed sleeving will satisfy the requirements of the AEA, which includes the protection of public health and safety.81 In other words, Petitioners agree that hideout at the tubesheet is not relevant to sleeving, but they believe they should be allowed to litigate the matter because it affects the overall safety of the steam generators. This is 77 Appeal at 21.
78 Order at 19. As the Board explained, the tubesheet is a thick plate, typically made from low-alloy steel, that contains thousands of holes for the steam generator tubes, with each tube being welded to the tubesheets primary face. The tubesheet is located toward the bottom of the steam generator and creates a barrier between the primary coolant entering the tubes and the secondary water of the steam generator. In contrast, the tube support plates are parallel to and above the tubesheet, bolster the tubes within the steam generator, hold the tubes in position, and maintain separation between the tubes. Id. (citing J.C. Smith, Steam Generator Manufacturing, Steam Generators for Nuclear Power Plants 60-62 (2017)).
79 Order at 18-19.
80 Id. at 20.
81 Petition at 21-22.
20 another application of Petitioners scope argument, which Applicant has fully addressed above and which does not provide a basis for overturning the Boards order. Moreover, apart from their overarching argument that the Board should have accepted notice pleading (also fully addressed above), Petitioners do not engage with the Boards rejection of their hideout theory as unsupported.
The Appeals general claims that the safety of the steam generators, unrelated to sleeving, is subject to litigation in this proceeding, and that notice pleading is enough to obtain an evidentiary hearing, fail to identify any reversible error in the Boards disposition of Petitioners hideout theory.
iii.
The Board Properly Rejected Petitioners Claim Regarding Watts Bar Unit 2 The Petition claimed that TVAs decision to replace the Watts Bar 2 steam generators dictates that NRC should require Holtec to also replace the Palisades steam generators.82 Specifically, Mr. Gundersen claimed that the Watts Bar Unit 2 steam generator was replaced 18 months after TVA sleeved the suspect tubes,83 and Watts Bar Unit 2 shows that sleeving is an 18-month Band-Aid fix.84 The Board found that this argument failed to raise a material dispute with the LAR because, while the LAR cited the Watts Bar 2 amendment as precedent for the information required by NRC to approve sleeving, the LAR did not rely on Watts Bar 2 as evidence of the efficacy of sleeving.85 That is because Watts Bar 2 never installed any sleeves in its steam 82 Petition at 21 (Mr. Gundersen explains in detail why the Watts Bar experience does not support the LAR and shows that the steam generators at Palisades must be replaced, as were the steam generators at Watts Bar 2.).
83 Gundersen Decl. at 23.
84 Id. at 24.
85 Order at 21.
21 generators before they were replaced.86 Moreover, the Board also concluded that replacement of the steam generators is not a matter permissibly at issue in this proceeding.87 The Appeal simply repeats the incorrect claim that Holtec relied on Watts Bar as precedent for the efficacy of installing sleeves, without acknowledging the contrary statement by the Board and without explaining why repeating this argument provides any coherent basis for overturning the Order given that Petitioners now appear to accept that Watts Bar 2 did not actually install sleeves.88 The Appeal also does not acknowledge, much less contest, the Boards determination that Petitioners arguments urging NRC to require replacement of plant equipment is beyond the scope of this proceeding (and, indeed, NRCs jurisdiction).89 The Appeal fails to identify any reversible error in the Boards rejection of their claims that TVAs business decision to replace the Watts Bar 2 steam generators requires NRC to mandate the same for Palisades.
iv.
The Board Properly Rejected Petitioners Claim that Sleeving Increases Stress on Tubes Finally, the last page of the Appeal addresses the only claim Petitioners raised related to sleeving. The Petition, relying on Mr. Gundersens statements and a magazine article Mr.
Gundersen cited, claimed that sleeving increases stress on the tube.90 The Board found that this 86 Id.
87 Id. at 16.
88 Compare Appeal at 22 (Even though the sleeves were never installed at Watts Bar, the experience at Watts Bar is relevant to show that Watts Bar was forced to replace its steam generators....), with Gundersen Decl. at 23 (...
[T]he Watts Bar Unit 2 steam generator was replaced 18 months after TVA sleeved the suspect tubes.).
89 See Holtec Intl (HI-STORE Consolidated Interim Storage Facility), CLI-20-04, 91 NRC 167, 193 (2020) ([T]he business decision of whether to use a license has no bearing on a licensees ability to safely conduct the activities the license authorizes.); see also note 60 supra.
90 Petition at 20 (... [I]nstalling metal sleeves upon the steam generator tubes at Palisades will increase the stress on the tubes and the tube sheet.); Gundersen Decl. at 18 (Holtecs sleeving solution for the Palisades Steam Generator Stress Corrosion Cracking (SCC) damage will increase the stress on the tubes and tube sheet.).
22 argument failed to raise a dispute with the LAR because the LAR itself (and the materials Mr.
Gundersen cited) acknowledges that sleeving can increase stress on the tube and then goes on to evaluate the extent of the stress and how to mitigate it to ensure that sleeving can be safely performedyet the Petition did not engage with or contest any of the analysis in the LAR.91 The Appeal objects because (1) the Board ignore[d] Mr. Gundersens own knowledge and experience by reviewing the materials he cited, and (2) the Framatome tests [demonstrating the efficacy of sleeving] were conducted under laboratory conditions, not with the severely damaged steam generator tubes and components at Palisades.92 Thus, Petitioners conclude, [t]he ASLB was adjudicating the facts, not properly determining the admissibility of the contention.93 The first half of this argument is an extension of Petitioners overarching theory that notice pleading should be enough to obtain an evidentiary hearing, which, as Applicant has addressed above, is not NRCs pleading standard. Indeed, Petitioners criticism of the Board for reading the materials Mr. Gundersen cited is directly contrary to Commission caselaw[t]he Board is not to accept uncritically the assertion that a document or other factual information or an expert opinion supplies the basis for a contention.94 Rather, the Commission expects its licensing boards to examine cited materials to verify that they do, in fact, support a contention,95 and [a] document 91 Order at 21-23; LAR, Encl. 1 at 12-13 (summarizing increased stresses on tubes from sleeving and acceptance requirements and meet design requirements with margin), Encl. 5 at 25-29 (detailing the analyses performed to confirm the extent of increased stress caused by sleeving would be within acceptable limits).
92 Appeal at 23.
93 Id.
94 Private Fuel Storage, LBP-98-7, 47 NRC at 181.
95 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-18-04, 87 NRC 89, 107 (2018); see also USEC, CLI-06-10, 63 NRC at 457.
23 put forth by an intervenor as the basis for a contention is subject to scrutiny for both what it does and does not show.96 But even if Petitioners preferred pleading standard were applied to Mr. Gundersens factual claim, it would not lead to a different result. The Board took Mr. Gundersens assertion that sleeving increases stress on tubes at face value.97 Indeed, the Board (and the LAR, Applicants Answer, and the materials Mr. Gundersen cited) all acknowledged that sleeving can increase stress on the tube.98 The process involves the expansion of the sleeve inside the parent tube, which, of course, can put outward pressure on the original tube.99 Rather than finding fault with this general premise, the flaw the Board found is that Petitioners did not explain how this general proposition calls into question any of the analysis or conclusions in the LAR. I.e., merely stating that sleeving can increase stress as a general matter does not raise a dispute with the LARs conclusion that the Palisades steam generator sleeves can be safely sleeved notwithstanding that effect.100 The Board did not err by requiring that Petitioners identify an actual dispute with the LAR.101 Second, the Appeal references the claim from Mr. Gundersens Declaration that the testing described in the LAR was insufficient.102 The Board separately addressed these arguments, which 96 Yankee Nuclear, LBP-96-2, 43 NRC at 90.
97 Order at 23 (Although Petitioners may be correct that sleeving can place additional stress on steam generator tubing, they fail to (1) dispute the LARs explanation of stress relief techniques, (2) demonstrate any errors in the stress relief analysis utilized in the LAR, (3) show why stress relief is not an acceptable method for Palisades, or (4) establish that this additional stress will cause damage that will fail the tubes within the inspection intervals required at Palisades.).
98 Order at 21-23; LAR, Encl. 1 at 12, Encl. 5 at 25-29; Applicants Answer at 26-29; Gundersen Decl. at 18 (citing SG Repair has something up its sleeve, Nuclear Engineering International (Feb. 28, 1998)).
99 See LAR, Encl. 1 at 7-9; Order at 12.
100 Merely claiming that a license amendment reduce[s] the margin of safety... fails to establish a genuine dispute of material fact, given the absence of any requirement to exceed the regulatory requirement. Southern Nuclear Operating Co., Inc. (Vogtle Elec. Generating Plant, Units 3 and 4), LBP-16-5, 83 NRC 259, 282 (2016).
102 Appeal at 18 (referencing Gundersen Decl. at 31).
24 neither the Petition nor Mr. Gundersen connected back to the conclusions of the LAR or even Mr.
Gundersens claim that sleeving creates stress on the tube materials. The Petition criticized the main steam line break test,103 the flow induced vibration analysis,104 and the seismic analysis.105 Mr. Gundersen did not explain why these tests were deficient, and the Petition did not articulate any particular consequence of the alleged deficiencies.106 The Board rejected each of these arguments because Petitioners failed to provide anything other than a conclusory statement that the tests (which were all performed in accordance with industry standards) were somehow deficient, provided no details or analysis to demonstrate why these tests were insufficient, and failed to relate any of these generic arguments back to the conclusions of the LAR (or their own contention).107 The only response in the Appeal is that [t]he ASLB was adjudicating the facts.108 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.109 For all of the foregoing reasons, the Appeal fails to identify any error of law or abuse of discretion in the Order. The Commission should affirm the Order and dismiss the Appeal.
103 Petition at 23; Gundersen Decl. at 31-32.
104 Gundersen Decl. at 32.
105 Id. at 36.
106 See generally Petition at 23; Gundersen Decl.at 3132.
107 Order at 20, 2425.
108 Appeal at 23.
109 Comanche Peak, CLI-93-10, 37 NRC at 198 (internal quotations omitted); see also note 23 supra (Petitioners bear 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 claim.).
25 IV.
Petitioners Failed to Establish Standing Because the Board correctly decided that Petitioners have not proffered an admissible contention, the Commission need not address whether Petitioners have demonstrated standing to challenge the LAR. All the same, Petitioners did not establish the legal basis for their standing, providing an independent basis to reject the Petition.110 Each of the Petitioners sought representational standing on behalf of one or more of their members that live within 50 miles of Palisades. Petitioners claim that these members have standing by applying the proximity presumption, which is based on a finding that persons living within the roughly 50-mile radius of the facility face a realistic threat of harm if a release from the facility of radioactive material were to occur.111 But, as the Board recognized, the Commission has only held that the proximity presumption applies in proceedings that pose an obvious potential for offsite consequences.112 In articulating their standing, Petitioners did not try to establish that the LAR presents an obvious potential for offsite consequences; rather, they relied on the restart and operations of the plant itselfanalogizing it to new plant construction and referring to the 10 CFR 50.82 exemption NRC already issued and an unspecified categorical exclusion from the National Environmental Policy Act, neither of which has any apparent relevance to this proceeding.113 The 110 See Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), CLI-05-8, 61 NRC 126, 166 (2005)
(Acting as an appellate body [the Commission is] free to affirm a Board decision on any ground finding support in the record, whether previously relied on or not.).
111 Calvert Cliffs 3 Nuclear Project, LLC, (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-09-20, 70 NRC 911, 917 (2009) (internal quotations and citations omitted).
112 Order at 4 (citing Vogtle, LBP-16-5, 83 NRC at 268).
113 See Petition at 14 ([R]estoration of Palisades to power generation is analogous to licensing a new nuclear power plant....); id. (If the exemption is denied, the potential threats or actual harms from Palisades will not occur.
Palisades may not resume operations without a license from the Commission....); id. at 14-15 ([T]he member-declarants have expressed bases for standing that fall within the zone of interests protected by the Atomic Energy Act and the National Environmental Policy Act... which are pertinent to this proceeding, even if the Commission decides to grant the requested categorical exclusion.).
26 Board acknowledged that Petitioners fail[ed] to allege in the standing section of their Petition that granting the LAR could plausibly result in the offsite release of radioactive fission products, but determined that the arguments raised in support of the contention were enough to support the Boards determination that the LAR presents an obvious potential for offsite consequences.114 While presiding officers may construe certain facts in favor of petitioners when evaluating standing, petitioners bear the burden of articulating their own legal arguments. Here, Petitioners, who are represented by experience NRC counsel, chose to rely on the restart of the plant as the only basis for applying the proximity presumption.115 The burden of establishing application of the proximity presumption falls on the petitioner.116 Licensing boards should not advance arguments that the petitioners have not themselves raised.117 Petitioners specifically relied on the operation of the plant and regulatory approvals that are not at issue in this proceeding as the only justification for applying the proximity presumption.118 The LAR does not authorize the restart, the Petitioners failed to offer any other theory for applying the proximity presumption, and they likewise failed to plead the traditional elements of standing.119 114 Order at 5 (Although Petitioners fail to allege in the standing section of their Petition that granting the LAR could plausibly result in the offsite release of radioactive fission products, they do include such allegations in the contention section of their Petition.).
115 Petition at 13-14.
116 Exelon Generating Co., LLC (Peach Bottom Atomic Power Station, Units 2 & 3), CLI-05-26, 62 NRC 577, 581 (2005).
117 See Southern Nuclear Operating Co., Inc. (Vogtle Electric Generating Plant, Unit 3), CLI-20-6, 91 NRC 225, 228 n.15 (2020) (concluding that the petitioner did not establish standing because it did not address standing in its petition notwithstanding statements in an attached affidavit);
see also FirstEnergy Nuclear Operating Co. (Beaver Valley Power Station, Units 1 and 2), CLI-20-5, 91 NRC 214, 223 n.45 (2020) (stating that the petitioner had an affirmative obligation to explain how the information in its supporting documents provides a basis for its claim to organizational standing.).
118 See Petition at 11-15.
119 If the petitioner fails to show that a particular licensing action raises an obvious potential for offsite consequences, then our standing inquiry reverts to a traditional standing analysis of whether the petitioner has made a specific showing of injury, causation, and redressability. Peach Bottom, CLI-05-26, 62 NRC at 581. To establish the traditional standing, a petitioner must demonstrate a concrete and particularized injury that is fairly traceable to
27 Accordingly, Petitioners failure to establish the legal basis for their standing provides independent grounds for rejecting the Petition.
V.
Conclusion The Board correctly found that Petitioners contention was inadmissible, and the Appeal fails to show that the Board erred or otherwise abused its discretion. Petitioners also failed to establish their standing in this proceeding. The Commission should affirm the Boards Order and reject the Petition.
the challenged action and is likely to be redressed by a favorable decision, where the injury is to an interest arguably within the zone of interests protected by the governing statute. Calvert Cliffs 3 Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-09-20, 70 NRC 911, 915 (2009) (internal quotation marks omitted).
28 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 PALISADES, LLC
[Certificate of Service]
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
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In the Matter of:
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HOLTEC PALISADES, LLC
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Docket No. 50-255-LA-4
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Palisades Nuclear Plant
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September 29, 2025
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CERTIFICATE OF SERVICE Pursuant to 10 CFR § 2.305, I certify that on this date the foregoing Holtec Palisades, LLC Brief in Opposition to Appeal was 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: September 29, 2025