ASLBP 24-986-01-LA-BD01, NRC Staff Answer to Intervention Petition from Beyond Nuclear, Dont Waste Michigan, Michigan Safe Energy Future, Three Mile Island Alert, and Nuclear Energy Information Service in Palisades Restart Amendments Proceeding

NRC Staff Answer to Intervention Petition from Beyond Nuclear, Dont Waste Michigan, Michigan Safe Energy Future, Three Mile Island Alert, and Nuclear Energy Information Service in Palisades Restart Amendments Proceeding

ML24309A277
Person / Time
Site:
Issue date:	11/04/2024
From:	Bernstein K, Lom P, Naber A, Mary Spencer NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 57180, 50-255-LA-3, ASLBP 24-986-01-LA-BD01
Download: ML24309A277 (0)

Text

November 4, 2024

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

In the Matter of

HOLTEC DECOMMISSIONING Docket No. - -LA-INTERNATIONAL, LLC, AND HOLTEC PALISADES, LLC

(Palisades Nuclear Plant)

NRC STAFF ANSWER TO INTERVENTION PETITION FROM BEYOND NUCLEAR, DONT WASTE MICHIGAN, MICHIGAN SAFE ENERGY FUTURE, THREE MILE ISLAND ALERT, AND NUCLEAR ENERGY INFORMATION SERVICE IN PALISADES RESTART AMENDMENTS PROCEEDING

INTRODUCTION

Pursuant to C.F.R. §. (i)() and the licensing boards (Boards) order dated

October,, the U.S. Nuclear Regulatory Commission (NRC) staff (Staff) herein answers

an intervention petition (Petition) from Beyond Nuclear, Dont Waste Michigan, Michigan Safe

Energy Future, Three Mile Island Alert, and Nuclear Energy Information Service (collectively,

Petitioners) filed on October,, challenging license amendment requests associated with

the potential restart of Palisades Nuclear Plant (Palisades). 1 As explained below, the Petition

should be granted, in part, because two of the Petitioners, Three Mile Island Alert and Nuclear

1 The Petition was originally filed on October,, on the hearing docket for the license transfer request associated with the potential restart of Palisades. On October,, the Office of the Secretary informed the participants that it had determined that the filing related to a proceeding separate from the license transfer request and that the submitter had been requested to refile the Petition in that separate proceeding. The Petition was filed on the hearing docket for this proceeding on October,.

Energy Information Service, establish standing, and portions of proposed Contention meet the

requirements for contention admissibility as a contention of omission.

However, as also explained below, Beyond Nuclear, Dont Waste Michigan, and

Michigan Safe Energy Future do not establish standing, and the remainder of the proposed

contentions are inadmissible. In particular, the remainder of the proposed contentions do not

provide material, adequately supported challenges that raise a genuine dispute with the license

amendment requests. Also, many of the Petiti oners arguments are outside the scope of the

proceeding and challenge NRC regulations and proc esses. Therefore, the Petition should only

be granted in part. Finally, the Petitioners request for a trial before an Article III judge is without

merit.

BACKGROUND

I. Palisades Licensing History Just Prior to Restart Efforts

Palisades was licensed for reactor operation until March,, under its renewed

facility operating license, 2 but by letter dated June,, the licensee at the time, Entergy

Nuclear Operations, Inc. (Entergy), submitted certifications under C.F.R. §. (a)() that

operation had permanently ceased and that fuel had been permanently removed from the

reactor.3 In accordance with C.F.R. §. (a)( ), the docketing of these certifications means

that the CFR part license no longer authorizes operation of the reactor or emplacement

or retention of fuel into the reactor vessel. Also, the NRC issued amendments changing the

operating license, which includes technical specifications (TS), to reflect the authorities and

2 Letter from Juan Ayala, NRC, to Paul A. Harden, Nuclear Management Company, LLC, Issuance of Renewed Facility Operating License No. DPR-for Palisades Nuclear Plant (Jan., ) (ADAMS Accession No. ML ).

3 Letter from Darrell W. Corbin, Entergy, to NRC Document Control Desk, Certifications of Permanent Cessation of Power Operations and Permanent Removal of Fuel from the Reactor Vessel (June,

) (ML A ) (Palisades. (a)() Certifications).

requirements for a reactor in decommissioning. 4 Among other things, the amendments removed

language from the license regarding the authority to operate the reactor and removed the TS for

an operating reactor that are not relevant to decommissioning. 5 However, even after these

amendments became effective during the decommissioning period, the license is still referred to

as a renewed facility operating license in the license itself, and it continues to be a Part

operating license.6

About months before submitting the Palisades. (a)() Certifications, Entergy

submitted a license transfer request on behalf of itself, Entergy Nuclear Palisades, LLC, Holtec

International, and Holtec Decommissioning International, LLC (HDI), to (among other things)

make Holtec Palisades, LLC (Holtec Palisades) the licensed owner of Palisades and to transfer

licensed operational authority for Palisades from Entergy to HDI. 7 Four hearing requests were

filed challenging this transfer request. 8 While these hearing requests were pending, the Staff

issued an order ( Transfer Order) approving the requested transfer (Entergy-Holtec

4 See, e.g., Letter from Scott P. Wall, NRC, to Vice President for Operations, Entergy, Palisades Nuclear Plant -Issuance of Amendment Regarding Administrative Controls for Permanently Defueled Condition (June, ) (MLA) (Defueled Administrative Controls Amendment); Letter from Scott P. Wall, NRC, to Vice President for Operations, Entergy, Palisades Nuclear Plant - Issuance of Amendment No.

Re: Permanently Defueled Technical Specifications (May, ) (ML A) (Defueled TS Amendment).

5 See, e.g., Defueled TS Amendment, Enclosure at,,,,, - (discussion of changes to License Conditions.B.() and.C.() in Sections.. and.. of the Staff safety evaluation and discussion of changes to the TS in Section. of the Staff safety evaluation); Defueled Administrative Controls Amendment, Enclosure (discussion of TS changes in Section of the Staff safety evaluation).

6 See, e.g., Defueled TS Amendment, Enclosure (license change pages repeatedly use the term Renewed Facility Operating License or similar terms such as renewed operating license, Facility Operating License, or Operating License).

7 Letter from A. Christopher Bakken III, Entergy, to NRC Document Control Desk, Application for Order Consenting to Transfers of Control of Licenses and Approving Conforming License Amendments, at (Dec., ) (ML A ).

8 Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant & Big Rock Point Site), CLI- -, NRC

( ).

Transfer).9 But the proposed transaction was subject to Palisades entering decommissioning. 10

Therefore, the transfer transaction did not close until June, after Entergy submitted

both §. (a)() certificationson which date the Staff issued a conforming administrative

amendment to the license (Entergy-Holtec Transfer Conforming Amendment). 11

As a result of the Entergy-Holtec Transfer, the license holders for Palisades are HDI and

Holtec Palisades. As stated in the Transfer Order, the Entergy-Holtec Transfer made

Holtec Palisades the licensed owner and HDI the licensed operator of Palisades and Big Rock

Point.12 HDI became the licensed operator because the NRC approve[d] the transfer of

operating authority from the currently licensed operator, Entergy Nuclear Operations, Inc.

(ENOI), to [HDI].13 This operating authority was the authority to conduct licensed activities at

Big Rock Point and Palisades. 14 After the transfer, HDI assume[d] responsibility for compliance

with NRC regulations and the current licensing bases, including regulatory commitments that

9 In the Matter of Entergy Nuclear Operations, Inc., Entergy Nuclear Palisades, LLC, Holtec International and Holtec Decommissioning International, LLC, Big Rock Point Plant and Palisades Nuclear Plant; Transfer of Licenses; Order, Fed. Reg., (Dec., ) ( Transfer Order). See also Letter from Scott P. Wall, NRC, to A. Christopher Bakken, III, Entergy, Palisades Nuclear Plant and Big Rock Point Plant - Order Approving Transfer of Licenses and Draft Conforming Administrative License Amendments (EPID L- -LLM- ) (Dec., ) (ML A (package)).

10 Safety Evaluation by the Office of Nuclear Reactor Regulation Related to the Request for Transfer of Control of Facility Operating License No. DPR-, Renewed Facility Operating License No. DPR-, and the General Licenses for the Independent Spent Fuel Storage Installations from Entergy Nuclear Operations, Inc. and Entergy Nuclear Palisades, LLC to Holtec International and Holtec Decommissioning International, LLC Big Rock Point Plant and Palisades Nuclear Plant, at (ML A) (stating, [T]he proposed transfer transaction is subject to Palisades also having permanently ceased operations.

Accordingly, HDI (the proposed licensed operator for decommissioning) would not be authorized under the Palisades license to operate or load fuel in the Palisade[s] reactor pursuant to CFR. (a)( ).)

11 Letter from Scott P. Wall, NRC, to Pierre Paul Oneid, Holtec International, and Kelly D. Trice, HDI, Palisades Nuclear Plant and Big Rock Point Plant - Issuance of Amendment Nos. and Re: Order Approving Transfer of Licenses and Conforming Administrative License Amendments (EPIDS L- -

LLM-AND L- -LLM- ) (June, ) (ML A (package)) (Entergy-Holtec Transfer Conforming Amendment).

12 Transfer Order, Fed. Reg. at,. Control of the Big Rock Point licenses is not affected by the transfer request related to potential restart of Palisades.

13 Id. at,.

14 Id. at,.

exist at the consummation of the proposed transfer transaction, and would implement any

changes under applicable regulatory requirements and practices. 15

Because the Entergy-Holtec Transfer was subject to hearing requests, the Transfer

Order included a condition stating that approval of the transfer is subject to the Commissions

authority to rescind, modify, or condition the approved transfer based on the outcome of any

post-effectiveness hearing on the license transfer application. 16 On July,, the

Commission denied three hearing requests on the transfer application but granted a hearing

request from the Michigan Attorney General and admit[ted] limited issues pertaining to the

Attorney General's challenge to the pr oposed transferees' financial qualifications. 17 The

Commission directed the appointment of a Presiding Officer to take all necessary actions to

compile, complete, and certify the hearing record, including presiding over any oral hearing. 18

The Presiding Officer held an oral hearing on February and,, closed the evidentiary

hearing record on February,, and certified the hearing record to the Commission on

March,.19 The Commission has not yet issued a decision on those hearing issues.

II. Licensing and Regulatory Requests Related to Potential Restart of Palisades

In, HDI engaged with the Staff regarding the potential restart of reactor operation at

Palisades. From September to May, the NRC received the following licensing and

regulatory requests related to potential restart of Palisades:

A September,, request for an exemption (Exemption Request) from the CFR. (a)( ) restriction that prohibits reactor power operations and retention

15 Id.

16 Transfer Order, Fed. Reg. at,.

17 Palisades, CLI- -, NRC at.

18 Id. at.

19 Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant & Big Rock Point Site), LBP- -,

NRC ( ).

of fuel in the reactor vessel by allowing for a one-time rescission of the docketed CFR. (a)() certifications.20

The December,, Restart Transfer Request, which seeks NRC consent to, and a conforming amendment for, a transfer of operating authority from HDI to Palisades Energy, LLC (OPCO) under Renewed Facility Operating License No. DPR-for Palisades and the general license for the Palisades Independent Spent Fuel Storage Installation (ISFSI).21

A December,, license amendment request (Pri mary Amendment Request) in support of resuming power operations that largely seeks to undo the changes made by the previously issued Defueled TS Amendment with some proposed differences from the previous operating reactor TS. 22

A February,, license amendment request (Administrative Controls Amendment Request) in support of resuming power operations that largely seeks to undo the changes made by the previously issued Defueled Administrative Controls Amendment with some proposed differences from the previous operating reactor TS.23

A May,, license amendment request (Emergency Plan Amendment Request) to revise the Palisades site emergency plan to support resuming power operations. 24

A May,, license amendment request (MSLB Amendment Request) to revise the Palisades main steam line break analysis to support the Palisades restart project.25

20 Letter from Jean A. Fleming, Holtec International, to NRC Document Control Desk, Request for Exemption from Certain Termination of License Requirements of CFR., at (Sept., )

(ML A) (Exemption Request).

21 Letter from Jean A. Fleming, Holtec International and HDI, to NRC Document Control Desk, Application for Order Consenting to Transfer of Control of License and Approving Conforming License Amendments, at (Dec., ) (ML A) (Restart Transfer Request).

22 Letter from Jean A. Fleming, Holtec International, to NRC Document Control Desk, License Amendment Request to Revise Renewed Facility Operating License and Permanently Defueled Technical Specifications to Support Resumption of Power Operations (Dec., ) (ML A) (Primary Amendment Request).

23 Letter from Jean A. Fleming, Holtec International, to NRC Document Control Desk, License Amendment Request to Revise Selected Permanently Defueled Technical Specifications Administrative Controls to Support Resumption of Power Operations (Feb., ) (ML A ) (Administrative Controls Amendment Request).

24 Letter from Jean A. Fleming, Holtec International, to NRC Document Control Desk, License Amendment Request to Revise the Palisades Nuclear Plant Site Emergency Plan to Support Resumption of Power Operations (May, ) (ML C ) (Emergency Plan Amendment Request).

25 Letter from Jean A. Fleming, Holtec International, to NRC Document Control Desk, License Amendment Request to Approve the Biasi Critical Heat Flux (CHF) Correlation for Use with the Palisades

The Staff has accepted all of these requests for review. The review is underway, and no

decisions have been made on any of the requests.

The four restart-related amendment requests are parts of the licensing and regulatory

requests that would be necessary to restart reactor operation at Palisades. All of the requests

listed in the previous paragraph would need to be approved for restart to be authorized. Also,

the Emergency Plan Amendment Request includes the following proposal:

As discussed in Reference, HDI is proposing to submit to the NRC, approximately four weeks in advance of the date that [Palisades] plans to transition to a power operations plant (transition date), a readiness letter that will state the planned transition date and HDIs satisfaction that the implementation conditions for license transfer, CFR. (a)( ) exemption, and license amendments are met. Additionally, on the designated transition date, HDI will submit a notification letter to docket that [Palisades] has transitioned from a facility in decommissioning to a power operations plant. 26

Like the restart-related requests as a whole, this proposal is subject to a detailed Staff technical

review.

III. Petitioners Hearing Request on Amendments Related to Restart of Palisades

On August,, the NRC published a Federal Register notice of opportunity to

request a hearing regarding the Transfer Request (Transfer Notice) 27 and a Federal Register

notice of opportunity to request a hearing regarding the four license amendment requests

(Amendments Notice).28 The Transfer Notice established an August,, deadline for

Main Steam Line Break (MSLB) Analysis, at (May, ) (ML A) (MSLB Amendment Request).

26 Emergency Plan Amendment Request at.

27 Holtec Decommissioning International, LLC, Holtec Palisades, LLC, and Palisades Energy, LLC; Palisades Nuclear Plant and the Palisades Independent Spent Fuel Storage Installation; Consideration of Approval of Transfer of Licenses and Conforming Amendment, Fed. Reg., (Aug., )

(Transfer Notice).

28 Holtec Decommissioning International, LLC, and Holtec Palisades, LLC; Palisades Nuclear Plant; Applications for Amendments to Renewed Facility Operating License Involving Proposed No Significant Hazards Considerations and Order Imposing Procedures for Access to Sensitive Unclassified Non-Safeguards Information and Safeguards Information, Fed. Reg., (Aug., ) (Amendments Notice).

hearing requests, while the Amendments Notice established an October,, deadline for

hearing requests.29 Three of the Petitioners (Beyond Nuclear, Dont Waste Michigan, Michigan

Safe Energy Future) filed a hearing request in response to the Transfer Notice on August,

. The Petitioners filed the instant Petition in response to the Amendments Notice on

October,.30 By order dated October,, the Board established a November,

, deadline for answers to the Petition. 31

DISCUSSION

As discussed below, the Petition should be granted, in part, because two of the

Petitioners, Three Mile Island Alert and Nuclear Energy Information Service, establish standing,

and portions of proposed Contention meet the requirements for contention admissibility as a

contention of omission. However, Beyond Nuclear, Dont Waste Michigan, and Michigan Safe

Energy Future do not establish standing because their standing arguments focus on the

Exemption Request, not the restart-related amendment requests that are the subject of this

proceeding. Also, the remainder of the proposed contentions are inadmissible because they

offer immaterial, out of scope, and inadequately supported challenges that do not raise a

genuine dispute with the licensee. Moreover, many of the proposed contentions arguments

challenge NRC regulations and processes, which is prohibited in this adjudicatory proceeding

absent a sufficient petition for waiver or exception under C.F.R. §. that the Petitioners

have not submitted. Therefore, the Petition should only be granted in part. Finally, the

Petitioners request for a trial before an Article III judge is without merit.

29 Transfer Notice, Fed. Reg. at, ; Amendments Notice, Fed. Reg. at,.

30 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.,

) (Petition). As explained above, the Petition was originally filed by the October,, deadline but on the wrong hearing docket. Also, the Staff notes that co-counsel for the Petitioners have not yet filed notices of appearance required by C.F.R. §.(b).

31 Holtec Decommissioning International, LLC (Palisades Nuclear Plant), LBP Memorandum and Order (Amending Initial Prehearing Order) (Oct. 17, 2024) (unpublished) (ML24291A105).

I. Three of the Petitioners Have Not Demonstrated Standing While Two of the Petitioners Have Demonstrated Standing

A. Standing Requirements

Section a. of the Atomic Energy Act, as amended (AEA), requires the Commission to

grant a hearing upon the request of any person whose interest may be affected by the

proceeding, and shall admit any such person as a party to such proceeding. 32 A request for a

hearing or petition for leave to intervene in a proceeding must demonstrate standing in

accordance with the NRCs requirements at C.F.R. §. (d). Pursuant to

§. (d)(), the request for a hearing or petition for leave to intervene must state:

(i) The name, address and telephone number of the petitioner;

(ii) The nature of the petitioner s right under the AEA to be made a party to the proceeding;

(iii) The nature and extent of the petitioner s property, financial or other interest in the proceeding; and

(iv) The possible effect of any decision or order that may be issued in the proceeding on the petitioner s interest.33

The burden of demonstrating standing is on the petitioner. 34 In addition, for the purposes of

determining standing the petition will be construed in the petitioner s favor 35 and its material

allegations will be accepted as true. 36

32 U.S.C. § (a)()(A).

33 C.F.R. §. (d)().

34 Commonwealth Edison Co. (Zion Nuclear Power Station, Units and ), CLI- -, NRC,

( ).

35 Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units and ), CLI--, NRC

, ( ).

36 Georgia Institute of Technology (Georgia Tech Research Reactor, Atlanta, Georgia), LBP- -, NRC

, ( ) (citing Warth v. Seldin, U.S., ( ), and Kelley v. Selin, F. d, -

( th Cir. )), vacated in part and remanded on other grounds, CLI- -, NRC, and aff'd in part, CLI- -, NRC ( ); see also U.S. Army Installation Command (Schofield Barracks, Oahu, Hawaii, and Pohakuloa Training Area, Island of Hawaii, Hawaii), CLI--, NRC, n. ( )

(citing Kelley, F. d at - ).

The Commission uses contemporaneous judici al concepts of standing when evaluating

whether a petitioner has established standing. 37 Accordingly, a petitioner must allege an injury in

fact that is fairly traceable to the challenged NRC action and that is likely to be redressed by a

decision favorable to the petitioner. 38 In addition, the alleged injury must arguably fall within the

zone of interests protected by the AEA. 39

While the Commission generally requires the elements of standing be pled with

specificity, it has also found standing in certain cases under a proximity presumption. In

proceedings for construction permits, operating licenses, or significant amendments thereto

such as the expansion of the capacity of a spent fuel pool, 40 the Commission permits a

petitioner who lives within, or otherwise has frequent contacts with, the zone of possible harm

from the nuclear reactor to establish standing without needing to make an individualized

showing of injury, causation, and redressability. 41 The determination of how proximate a

petitioner must be to a source of radioactivity depends on the danger posed by the source at

issue.42 In practice, the Commission has applied the proximity presumption in construction

permit, operating license, and license renewal proceedings for power reactors to find standing

where a petitioner resides within approximately miles of the facility.43 The Commission has

also found standing under the proximity presumption where the petitioner has a property interest

37 See Turkey Point, CLI--, NRC at ; see also Calvert Cliffs Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit ), CLI- -, NRC, ( ).

38 Tu r k e y P o i n t, CLI--, NRC at.

39 Entergy Nuclear Operations, Inc., and Entergy Nuclear Palisades, LLC (Palisades Nuclear Plant),

CLI- -, NRC, ( ).

40 Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Units and ), CLI- -, NRC,

( ).

41 Calvert Cliffs, CLI- -, NRC at.

42 Florida Power and Light Co. (Turkey Point, Units and ), LBP--, NRC, ( ).

43 See Calvert Cliffs, CLI- -, NRC at n..

near the facility.44 In license amendment proceedings, how ever, the proximity presumption

applies where the license amendment presents an obvious potential of offsite radiological

consequences.45 A determination of an obvious potential for offsite radiological consequences

takes into account the nature of the proposed action and the significance of the radioactive

source.46

An organization may establish representational standing by demonstrating, typically via

affidavit, that at least one of its members may be affected by the proceeding and that these

members have authorized the organization to represent them and to request a hearing on their

behalf.47 Further, the member seeking representation must qualify for standing in [their] own

right; the interests that the representative organization seeks to protect must be germane to its

purpose; and neither the asserted claim nor the requested relief must require an individual

member to participate in the organizations legal action. 48

B. The Petitions Standing Arguments Do Not Demonstrate Standing with Respect to Three of the Petitioners and Do Demonstrate Standing with Respect to Two of the Petitioners

The Petition states that three organizations - Beyond Nuclear, Dont Waste Michigan,

and Michigan Safe Energy Future - are each petitioning on behalf of two of their members, all of

whom herewith have submitted declarations. 49 Two other Petitioners, Three Mile Island Alert

and Nuclear Energy Information Service, also assert representational standing elsewhere in the

44 See USEC, Inc. (American Centrifuge Plant), CLI- -, NRC, - ( ) (granting standing based on petitioner holding title to home near uranium enrichment facility notwithstanding that petitioner did not reside at the home).

45 Zion, CLI- -, NRC at ( ) (quoting St. Lucie, CLI- -, NRC at ); see also Turkey Point, LBP--, NRC at.

46 Exelon Generation Co, LLC & PSEG Nuclear, LLC (Peach Bottom Atomic Power Station, Units & ),

CLI- -, NRC, - ( ).

47 FirstEnergy Nuclear Operating Co. and FirstEnergy Nuclear Generation, LLC (Beaver Valley Power Station, Units and ), CLI- -, NRC, - ( ).

48 Beaver Valley, CLI- -, NRC at.

49 Petition at -.

Petition.50 As discussed below, Beyond Nuclear, Dont Waste Michigan, and Michigan Safe

Energy Future have not demonstrated standing because their members standing arguments

relate to the Exemption Request and not to HDIs four license amendment requests, which are

the subject of this proceeding. Three Mile Island Alert and Nuclear Energy Information Service,

whose members standing arguments are tied to HDIs license amendment requests in addition

to the Exemption Request, have demonstrated standing.

. Beyond Nuclear, Dont Waste Michigan, and Michigan Safe Energy Future Have Not Satisfied Their Burden of Demonstrating Representational Standing

Beyond Nuclear (BN), Dont Waste Michigan (DWM), and Michigan Safe Energy Future

(MSEF) each seek to establish representational standing to intervene in this proceeding based

on the individual standing of two of their respective members. 51 The Petition includes signed

and dated declarations from William D. Reed 52 and Carolyn Ferry,53 members of BN; Alice Hirt

and Joseph C. Kirk, members of DWM; and James Scott and Ann Scott, members of MSEF. 54 In

their declarations, these individuals each designate the respective organization of which they

are a member to represent their interests in this proceeding. 55

The NRCs hearing regulations require hearing requests to state the

requestors/petitioners interest in the proceeding and [t]he possible effect of any decision

50 See id. at -.

51 See id. at,, -.

52 The Petition itself refers to W. Dillon Reed, Petition at -, but the signed, individual member declaration refers to William D. Reed. The Staff is using William D. Reed for consistency and in deference to the individuals apparent preference.

53 The Petition itself refers to Caroline Ferry, Petition at,, but the signed, individual member declaration refers to Carolyn Ferry. As with references to William D. Reed, the Staff is using Carolyn Ferry for consistency and in deference to the individuals apparent preference.

54 See William D. Reed Declaration; Carolyn Ferry Declaration; Alice Hirt Declaration; Joseph C. Kirk Declaration; James Scott Declaration; Ann Scott Declaration.

55 William D. Reed Declaration at ; Carolyn Ferry Declaration at ; Alice Hirt Declaration at - ; Joseph C. Kirk Declaration at - ; James Scott Declaration at - ; Ann Scott Declaration at -.

or order that may be issued in the proceeding on the requestor's/petitioner's interest. 56 As

stated in the notice of hearing opportunity, this proceeding is limited to four license amendment

requests submitted by HDI. 57 The Petitions standing arguments, however, state that the six

individuals BN, DWM, and MSEF seek to represent oppose HDIs Exemption Request but does

not state any opposition to or otherwise challenge the license amendment requests. 58 In fact,

the Petition does not reference the license amendment requests at all in discussing these six

individuals basis for standing or the standing of the organizations of which they are members. 59

Because the Petitions standing arguments for the individuals that BN, DWM, and MSEF seek to

represent never articulate their interest in the proceeding on the amendment requests or how

approval of them would affect their interests, the Petitions standing arguments do not satisfy

C.F.R. §. (d)()(iii)-(iv). Similarly, the standi ng arguments do not demonstrate a

concrete and particularized injury that is fairly traceable to the challenged action and is likely to

be redressed by a favorable decision 60 because any decision in this proceeding would be on

the license amendment requests, which these individuals do not challenge. 61 Therefore, the

Petition does not demonstrate that BN, DWM, and MSEF have representational standing.

The Board need not further consider the standing declarations for BN, DWM, MSEF, and

the six individuals they seek to represent becaus e the Petition itself must explain how the

56 C.F.R. §. (d)()(iii)-(iv) (emphasis added).

57 Amendments Notice, Fed. Reg. at, (The scope of this notice is limited to comments, requests for a hearing, and petitions for leave to intervene related to the four proposed license amendment requests listed in tabular form in Section III of this document.).

58 See, e.g., Petition at,,,,, (stating that William D. Reed, Carolyn Ferry, James Scott, Ann Scott, Alice Hirt, and Joseph C. Kirk, respectively, oppose[] the granting of an exemption by the NRC with no reference to the license amendment requests).

59 See id. at -, -.

60 Calvert Cliffs, CLI- -, NRC at (emphasis added) (internal quotation marks omitted).

61 See Petition at (As each of the member declarants explains, they will suffer (or will be under the threat of suffering) concrete and particularized injuries from the restored operations of Palisades if the exemption sought by Holtec is granted.) (emphasis added).

supporting documents included with it provide a basis for standing. For example, the

Commission concluded in one proceeding that the petitioner did not establish standing because

it does not address standing in its Petition; in its assessment of standing, the Commission did

not consider a member declaration submitted with the Petition. 62 Here, because the six

individuals standing arguments in the Petition do not provide a basis for standing, the Board

need not consider their declarations. Consistent with Commission precedent, the Staff will not

attempt to infer an argument for standing on behalf of the Petitioner; the Petition should be

considered as it was pled. 63

As with the Petition, the standing declarations for BN, DWM, MSEF, and the six

individuals they seek to represent do not provide a basis for standing. In their declarations, the

individuals demonstrate an awareness of the license amendment requests but again challenge

only the Exemption Request. 64 These six individuals, therefore, have not articulated an interest

62 Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Unit 3), CLI-20-6, 91 NRC 225, 228 n.15, 238 (2020) (emphasis added). The members declaration in Vogtle provided the members name and address, affirmed she was a member of the petitioning organization, stated her safety concerns, and authorized the petitioner to represent her and protect her interests in the proceeding. Declaration of Susan Bloomfield (ML20111C451) (Apr. 10, 2020).

63 See Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2), CLI-99-4, 49 NRC 185, 194 (1999) (internal quotation marks omitted) (We do not expect our adjudicatory Boards, unaided by the parties, to sift through the parties pleadings to uncover and resolve arguments not advanced by litigants themselves. The burden of setting forth a clear and coherent argument for standing and intervention is on the petitioner. It should not be necessary to speculate about what a pleading is supposed to mean.)

64 William D. Reed Declaration at ; Carolyn Ferry Declaration at ; Alice Hirt Declaration at ; Joseph C.

Kirk Declaration at ; James Scott Declaration at ; Ann Scott Declaration at (I oppose the granting of the exemption by the NRC.). These declarations reference the license amendment requests only as part of a general description of the requested licensing actions. See, e.g., William D. Reed Declaration at (HDI has submitted several requests for NRC approval to support allowing the resumption of power operations through March,. These requests include four license amendment requests and an exemption request.). While the standing declarations of Alice Hirt, Joseph C. Kirk, James Scott, and Ann Scott describe this proceeding as either a license transfer and/or amendment proceeding[,] Alice Hirt Declaration at ; Joseph C. Kirk Declaration at ; James Scott Declaration at ; or a license transfer and amendment proceeding[,] Ann Scott Declaration at, this reference to the license amendment requests does not constitute a challenge to those requests nor does it articulate their interest in this proceeding on HDIs license amendment requests. See C.F.R. §. (d)()(iii). The declarations of William D. Reed and Carolyn Ferry describe this proceeding as a regulatory exemption proceeding. William D. Reed Declaration at ; Carolyn Ferry Declaration at.

in the license amendment requests or explai ned how approval of the amendment requests

would affect their interests as required by C.F.R. §. (d)()(iii) and (iv). Similarly, their

standing arguments do not demonstrate a concrete and particularized injury that is fairly

traceable to the challenged action and is likely to be redressed by a favorable decision 65

because any decision in this proceeding would be on the license amendment requests, which

these individuals do not challenge. Therefore, William D. Reed, Carolyn Ferry, Alice Hirt,

Joseph C. Kirk, James Scott, and Ann Scott have not demonstrated standing in this proceeding.

Because BN, DWM, and MSEF must demonstrate that the individuals whom they seek to

represent have demonstrated standing in their own right, 66 and because these individuals have

failed to do so, BN, DWM, and MSEF have not satisfied their burden of demonstrating

representational standing. 67

BN, DWM, and MSEF state in the Petition and in their declarations that they, as

organizations, oppose HDIs license amendment requests, 68 but this is immaterial to

determining whether they demonstrate representational standing on behalf of their members,

and these organizations have not asserted organizational standing in their own right. Therefore,

BN, DWM, and MSEFs own opposition to the license amendment requests does not help to

demonstrate that they have representational standing to intervene in this proceeding.

Finally, the Staff notes that, as discussed below, the Petitioners may file contentions

challenging the Exemption Request under Commission precedent providing that a petitioner

65 Calvert Cliffs, CLI- -, NRC at (emphasis added) (internal quotation marks omitted).

66 Beaver Valley, CLI- -, NRC at.

67 Consistent with Commission precedent, the Staff will not attempt to infer an argument for standing on behalf of Petitioners; the Petition should be considered as it was pled. See Zion, CLI- -, NRC at

68 Petition at (Five petitioning organizations, Beyond Nuclear, Michigan Safe Energy Future, Dont Waste Michigan, Three Mile Island Alert and Nuclear Energy Information Service demonstrate below that they have standing to pursue contentions against Holtecs request for license amendments. Petitioners contend that the requested license amendments must not be granted.).

may raise arguments related to an exemption request when such arguments are material to a

proposed licensing action and directly bear[] on whether the proposed action should be

granted.69 However, Commission precedent on the ability to challenge an exemption request

that is intertwined with a proposed licensing action has been applied to contention admissibility,

not standing.70 Contention admissibility and standing are different concepts governed by

different criteria set forth in NRC regulations. 71 Contentions are addressed at whether the

proposed action should be granted and must, among other things, demonstrate their materiality

to the findings the NRC must make in order to issue a licensing action; 72 therefore, the

materiality of an exemption request to a licensi ng action is directly relevant to the NRCs

contention rule. Standing, however, is focused on the asserted injury that would accrue if the

proposed action is granted, i.e., the injury that would accrue from the decision or order that may

be issued in the proceeding, 73 which in this instance is the decision on the restart-related

amendment requests, not the Exemption Request.

As explained above, BN, DWM, and MSEF have not asserted any injuries from the

proposed amendments, having challenged only the Exemption Request. In any case, granting

the exemption would not cause injury because it would merely remove a prohibition on potential

operation of Palisades; it would not authorize restart of the reactor. The amendment requests,

however, propose changes to the license to authorize restart. 74 Even if HDIs Exemption

69 Palisades, CLI- -, NRC at (emphasis added).

70 See, e.g., Palisades, CLI- -, NRC at ; Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Station, Units,, and and ISFSI), CLI--, NRC, & n. ( ).

71 Compare C.F.R. §. (d) (standing requirements), with C.F.R. §. (f) (contention admissibility requirements).

72 C.F.R. §. (f)()(iv).

73 C.F.R. §. (d)()(iv).

74 See Primary Amendment Request, at. Among the changes to the license that the Primary Amendment Request proposes is authorization to operate the facility at steady state reactor core power levels not in excess of. Megawatts thermal ( percent rated power)[.] Id., Enclosure, Attach., at.

Request could in some way be tied to an injury-in-fact from the license amendment requests,

Petitioners have not made that connection in the Petition, as it was their burden to do. 75

For the reasons stated above, BN, DWM, and MSEF have not satisfied their burden of

demonstrating representational standing and should not be admitted as parties to this

proceeding. Nevertheless, the Staff addresses the contentions submitted by BN, DWM, and

MSEF in Discussion Section III, below, and concludes that one contention is admissible in part.

. Three Mile Island Alert and Nuclear Energy Information Service Have Satisfied Their Burden of Demonstrating Representational Standing

Three Mile Island Alert (TMIA) is a nonprofit organization with approximately

members that is opposed to commercial nuclear power for safety and economic reasons. 76

Nuclear Energy Information Service (NEIS) is a nonprofit organization with over members

that is committed to ending nuclear power and advocating for energy alternatives. 77 TMIA and

NEIS each seek to establish representational standing to intervene in this proceeding based on

the individual standing of one of their respective members. 78 The Petition includes signed and

dated declarations from David Staiger, a member of TMIA, and John Brenneman, a member of

NEIS.79 In their declarations, these individuals each designate the respective organization of

which they are a member to represent their interests in this proceeding. 80

TMIA and NEIS state in the Petition that their members oppose[] the granting of the

exemption by the NRC and all of the license ame ndments because of safety, public health, and

75 See Zion, CLI- -, NRC at.

76 Petition at.

77 Id. at.

78 See id. at -,.

79 See David Staiger Declaration; John Brenneman Declaration.

80 David Staiger Declaration at - ; John Brenneman Declaration at -.

environmental concerns.81 Davis Staiger and John Brennemans declarations also state

opposition to the license amendment requests and connect the challenged actions that are the

subject of this proceedingthe license amendment requeststo the injuries they claim they will

suffer if the NRC issues the amendments. 82 They therefore address their interest in the

proceeding and [t]he possible effect of any decision or order that may be issued in the

proceeding on that interest. TMIA and NEIS make similar statements in the Petition and in their

respective declarations opposing the license amendment requests and the Exemption

Request.83

While TMIA and NEIS are challenging lic ense amendment requests, the requests, if

granted, would support restart of the Palisades reactor and resumption of power operations at

the facility.84 Although the license amendment and operating license processes are different,

granting the amendment requests along with HDIs other related requests would, like granting

an initial operating license, permit the applicant to operate a nuclear reactor at full power where

reactor operation was not previously permitted. Taking into account the nature of the challenged

action (restarting the Palisades reactor from its current defueled state to full-power operations)

and the significance of the radioactive source involved (operation of the reactor itself), the

license amendment requests presents an obvious potential of offsite radiological

consequences.85 As the Commission has stated,

[T]he common thread in the [NRC] decisions applying the -mile presumption is a recognition of the potential effects at significant distances from the facility of the accidental release of fissionable materials. The NRC's regulations also recognize that an accidental release has potential effects within a -mile radius of a reactor. The Commission has applied its expertise and concluded that

81 Petition at, -.

82 See David Staiger Declaration at - ; John Brenneman Declaration at -.

83 See Petition at, ; Eric Epstein Declaration at ; David Kraft Declaration at.

84 Primary Amendment Request, at.

85 Zion, NRC at (quoting St. Lucie, CLI- -, NRC at ).

persons living within a -mile radius of a proposed new reactor face a realistic threat of harm if a release of radioactive material were to occur from the facility. 86

The same logic applies here. The amendment requests TMIA and NEIS contest propose

changing the license to enable a currently shutdown and defueled reactor to resume operation

at full power, which would involve generating radioactivity in the reactor core. This, on its face,

entails an obvious potential for offsite consequences in the unlikely event of an accident. For

these reasons, it is appropriate to apply, for purposes of standing, the -mile proximity

presumption used in operating license proceedings.

In their declarations, David Staiger and John Brenneman state that they live within

miles of Palisades.87 These declarations demonstrate that at least one member of TMIA and

NEIS would have standing to intervene in thei r own right based on the proximity presumption. 88

In keeping with Commission case law, the interests that TMIA and NEIS seek to protect in this

proceeding are germane to their purposes, and neither the asserted claims nor the requested

relief require an individual member to participate in this proceeding. 89 For these reasons, TMIA

and NEIS have satisfied their burden of demonstrating representational standing.

II. Additional Context on the Licensing Process and the Environmental Review

Before addressing the proposed contentions individually, the Staff will first address two

more general matters that provide important context for the Boards consideration of several of

the contentions. These two general matters relate to ( ) the Staffs consideration of licensing

86 Calvert Cliffs, CLI- -, NRC at (alterations in original) (quoting Calvert Cliffs Nuclear Project, LLC (Combined License Application for Calvert Cliffs Unit ), LBP- -, NRC, - ( )).

87 David Staiger Declaration at ; John Brenneman Declaration at.

88 Using the addresses provided on page of their respective declarations, the Staff verified, using the straight-line measurement tool in Google Maps, that Messrs. Staiger and Brenneman live approximately

. miles and miles, respectively, from the Palisades containment building.

89 Beaver Valley, CLI- -, NRC at (citing Palisades, CLI- -, NRC at - ; Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI- -, NRC, ( )).

and regulatory requests related to the potential restart of Palisades and ( ) the relationship

between the environmental review and the hearing request requirements.

A. Staff Consideration of Licensing and Regulatory Requests Related to the Potential Restart of Palisades

Here, the Staff explains explain how it is considering the licensing and regulatory

requests related to the potential restart of reactor operation at Palisades within the existing

regulatory framework. The Staff is doing so because the proposed contentions appear to rely on

certain erroneous assumptions about the licensing and regulatory processes applicable to

restart of Palisades. Although this proceeding does not concern all of the restart-related

requests, the Staff will here address all of them (license amendments, license transfer, and

exemption) so that the role the challenged requests have in the Palisades restart efforts can be

considered in their proper context.

To begin, the Staffs consideration of all restart-related requests is governed by

Commission-established policy on the reauthorization of reactor operations for plants in

decommissioning. In denying a petition for rulemaking ( PRM Denial), the Commission

stated that the NRC may consider requests from licensees to resume operations under the

existing regulatory framework. 90 Therefore, the Staff has examined whether the license

amendment, license transfer, and exemption proce sses may be used to seek the resumption of

reactor operation at Palisades under the existing regulatory framework given the current status

of the Palisades license.

Although the Staff has not completed its review of any of the restart-related requests, the

Staff has concluded, generally, that a facility licensee in decommissioning may apply to use the

license amendment, transfer, and exemption processes, as applicable, to seek approval for the

90 Criteria To Return Retired Nuclear Power Reactors to Operations, Fed. Reg.,,, (May,

) (denying a petition for rulemaking) ( PRM Denial).

actions necessary to authorize the restart of a reactor in decommissioning. As discussed below,

the Staff has reached this conclusion for two principal reasons.

First, a facility operating license continues in effect for reactors in decommissioning

because entering the decommissioning process involves a change in license authority and not a

change to the form of the license itself. Specifically, C.F.R. §. (a)( ) provides that upon

docketing the §. (a)() certifications, the CFR part license no longer authorizes

operation of the reactor or emplacement or retention of fuel into the reactor vessel. In other

words, the authority to operate is gone but the same Part license remains. The continuation

of the Part license is made explicit by C.F.R. §.(b), which states Each license for a

facility that has permanently ceased operations, continues in effect beyond the expiration date

to authorize ownership and possession of the production or utilization facility, until the

Commission notifies the licensee in writing that the license is terminated. 91 Thus, the Palisades

license remains a renewed Part facility operating license during the decommissioning

process.

The following examples from the broader r egulatory context and the Palisades license

itself also support the Staffs understanding:

Both C.F.R. §. and the Decommissioning Rule refer to termination of an operating license, meaning that the license is still an operating license at the point of termination.92

Commission precedent has applied requirements for operating licenses to plants in decommissioning.93

91 C.F.R. §.(b) (emphasis added).

92 See C.F.R. §. (d)( ) (referring to the termination of an operating license issued under this part); Decommissioning of Nuclear Power Reactors, Fed. Reg.,,, (July, ) (final rule) (referring to the termination of an operating license) ( Decommissioning Rule).

93 See EnergySolutions, LLC (Zion Nuclear Power Station, Units & ), CLI- -, N.R.C., &

n. ( ) (applying the requirements in C.F.R. §. (b)()(i) for construction permits and operating licenses to license transfers for facilities in decommissioning).

Section. applies by its terms to operating licenses and combined licenses and yet includes a provision applicable to a nuclear power reactor facility for which the certifications required under §. (a)() have been submitted.94

Other important requirements for operating licenses, such as the requirement in

§. (a)() to implement a quality assurance program, do and should continue to apply in decommissioning.

The license change pages from the Defueled TS Amendment, which was intended to reflect the modified responsibilities and authorities for Palisades in decommissioning, refer to the Palisades license as a renewed facility operating license. 95

As a consequence, the NRCs regulatory requi rements for operating licenses continue to

apply to Palisades absent an exemption or an exclusion in the NRCs regulations for plants in

decommissioning. Regulatory requirements that still apply include those in C.F.R. §. for

final safety analysis reports (FSARs) and in C.F.R. §. (a) for quality assurance (QA)

plans.

Second, because the license for a reactor in decommissioning remains a facility

operating license, licensing and regul atory requests within the existing regulatory framework

may be used to restore the licensed authority for reactor operation. The license amendment,

license transfer, and exemption processes are all within the existing regulatory framework and

may be applied to a reactor in decommissioning as follows:

94 C.F.R. §. (introductory paragraph and paragraph (y))

95 Defueled TS Amendment, Enclosure, Attach. (attached license change pages -, Appendix A title page, and Appendix B title page that refer to the license as a Renewed Facility Operating License or use similar terms, such as renewed operating license, Facility Operating License, or Operating License).

Retaining the term operating license was intentional, as the Staff issued a request for additional information (RAI) in which it explained why the Palisades license would still be a renewed facility operating license during the decommissioning phase. Letter from Scott P. Wall, NRC, to Vice President, Operations, Entergy, Palisades Nuclear Plant - Request for Additional Information Regarding License Amendment Request for Permanently Defueled Amendment Request (EPID L- -LLA- ),

Enclosure at - (Apr., ) (ML A ). Entergy responded by withdrawing its proposal to delete the term operating when it appeared before license. Letter from Phil Couture, Entergy, to NRC Document Control Desk, Response to Request for Additional Information Regarding License Amendment Request to Revise Facility Operating License and Technical Specifications for a Permanently Defueled Condition, Enclosure at - (Apr., ) (MLA). Even if this proposal had not been withdrawn, that would not have changed the status of the license under NRC regulations, as discussed above.

Because license amendments are typi cally used to change the authorities and requirements for a reactor in decommissioning, 96 the amendment process may be used to restore those authorities so long as the amendment standards in C.F.R.

§. (a) are met.

The license transfer process may be used to transfer authorities under the existing license to a transferee that is qualified to hold a license for reactor operation under C.F.R. §. (c)().

Although §. (a)( ) prohibits reactor operation for a reactor in decommissioning, the exemption process established by C.F.R. §. is available to remove regulatory restrictions, including the one in §. (a)( ), if all exemption requirements are met.

For these reasons, the Staff has concluded that a licensee in decommissioning may seek the

restart of reactor operation by applying to use relevant processes within the existing regulatory

framework, including the license amendment, lic ense transfer, and exemption processes.

B. Relationship Between the Environmental Review and Hearing Request Requirements

The Staff is here addressing as a general matter how certain information provided by

HDI to support the environmental review relates to the hearing request requirements. The Staff

is doing so because the amendments proceeding involves an unusual situation where the

amendment requests invoke a categorical exclusi on for the environmental review, but the Staff

has instead decided to prepare an environmental assessment (EA). Relatedly, none of the

proposed contentions address the applications arguments on the categorical exclusion criteria

but instead contest other environmental information submitted by HDI. As discussed below, this

other environmental information challenged by the Petitioners falls within the NRC definition of

environmental report, and the Petitioners may challenge it in accordance with C.F.R.

§. (f)( ).

96 See, e.g., Defueled Administrative Controls Amendment; Defueled TS Amendment.

In each of the restart-related license amendment requests, HDI asserts that the

categorical exclusion in C.F.R. §. (c)( ) applies.97 However, the Staff has determined not

to invoke any categorical exclusions for the environmental review. Instead, the Staff has

decided to prepare an EA that covers the restart-related amendment requests, transfer request,

and exemption request, as discussed in a June, Federal Register notice (Notice of

Intent to Prepare EA and Conduct Scoping). 98 As described therein, if the Staff is able to

determine that there are no significant impacts, the Staff intends to publish for comment a draft

EA and a draft finding of no significant impact. 99

While the Staff is not relying on the categorical exclusion arguments, three of the four

amendment requests reference a separate HDI environmental evaluation in Enclosure of the

Exemption Request. For example, after stating that a categorical exclusion applies, the Primary

Amendment Request further states:

In support of this conclusion, as described in Reference, an independent environmental review of potentially new and significant information, and environmental issues not addressed in the October Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement,

Regarding Palisades Nuclear Plant [License Renewal EIS Supplement] was performed. The review concluded that the proposed licensing actions environmental impacts are consistent with the findings in the [Palisades] RFOL Supplemental Environmental Impact Statement (NUREG, Supplement ),

and hence the NRC staff recommendation to the Commission is applicable to this activity.100

97 Primary Amendment Request, Enclosure at - ; Administrative Controls Amendment Request, Enclosure at - ; Emergency Plan Amendment Request, Enclosure at -; MSLB Amendment Request, Enclosure at -.

98 Holtec Decommissioning International, LLC, and Holtec Palisades, LLC; Palisades Nuclear Plant; Notice of Intent to Conduct Scoping Process and Prepare an Environmental Assessment, Fed. Reg.

,,, (June, ) (Notice of Intent to Prepare EA and Conduct Scoping).

99 Id.

100 Primary Amendment Request, Enclosure at -. The Reference mentioned in the quoted text is the Exemption Request.

The Administrative Controls Amendment Request and the Emergency Plan Amendment

Request have the same text.101 The referenced new and significant review found in Enclosure

of the Exemption Request was submitted to ai d the NRC in its environmental review, which

the Staff is conducting under the National Environmental Policy Act of, as amended

(NEPA) § ( ), among other provisions. Therefore, Enclosure meets the definition of

Environmental Report in C.F.R. §., and the Staff will hereafter refer to it as the

Environmental Report.102

Further, given the content of the Environmental Report and its ultimate conclusions, the

Staff understands that it serves to support a determination that there would be no significant

impact from restart of reactor operation at Palisades. The Environmental Report does not

address conformance with the categorical exclusion criteria in C.F.R. §. (c)( ) but rather

discusses the continued relevance of the environmental impact determinations in the License

Renewal EIS Supplement. Specifically, the Environmental Report states that the License

Renewal EIS Supplement reports SMALL impacts in all categories for which an impact

determination was made and that HDI did not identify any new and significant information that

would change these determinations. 103 A SMALL impact determination means that [f]or the

issue, environmental effects are not detectable or are so minor that they will neither destabilize

nor noticeably alter any important attribute of the resource. 104 The Environmental Report further

states, Holtec considered that any new info rmation regarding environmental issues with

101 Administrative Controls Amendment Request, Enclosure at ; Emergency Plan Amendment Request, Enclosure at -.

102 See C.F.R. §. (stating that Environmental report means a document submitted to the Commission by an applicant for a permit, license, or other form of permission, or an amendment to or renewal of a permit, license or other form of permission, or by a petitioner for rulemaking, in order to aid the Commission in complying with section ( ) of NEPA).

103 Exemption Request, Enclosure at (Environmental Report).

104 C.F.R. Part, App. B, Table B-n.. See also Exemption Request, Enclosure at (Environmental Report).

MODERATE or LARGE impacts would be significant. 105 Therefore, the Staff understands that

the Environmental Report has the purpose of confirming that restart of Palisades would not

have a significant environmental impact, consiste nt with the generic finding of no significant

impact that the categorical exclusion cited by HDI represents. 106

Moreover, the Environmental Report and the License Renewal EIS Supplement to which

it relates are being considered by the Staff in its environmental review, which is assessing

whether NRC approval of the restart-related actions would have a significant impact. As the

Staff stated in its Notice of Intent to Prepare EA and Conduct Scoping:

To inform its environmental review, the NRC staff is considering a number of sources, including the previous NRC environmental review for [Palisades] license renewal that is documented in the October Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement, Regarding Palisades Nuclear PlantFinal Report (hereafter License Renewal EIS Supplement). The License Renewal EIS Supplement addresses the environmental impacts of continued operation during the license renewal period, which is the same operating period applicable to HDIs requests for reauthorization of power operations. The NRC staff is also considering the environmental information that HDI submitted in Enclosure, Environmental New and Significant Review Proposed Resumption of Power Operations Palisades Nuclear Plant, of the September,, exemption request. As stated in the exemption request, Enclosure documents HDIs environmental review of potentially new and significant information, and environmental issues not addressed in the License Renewal EIS Supplement. 107

Therefore, the Environmental Report continues to relate to the environmental review for the

restart-related amendment requests. As such, the Petitioners may challenge, and are indeed

obligated to challenge, the Environmental Report under C.F.R. §. (f)( ), which requires

contentions to be based on documents or other information available at the time the petition is

to be filed, including (as relevant here) the application, environmental report or other

105 Exemption Request, Enclosure at (Environmental Report).

106 See NEPA § (), U.S.C. § e() (providing that a categorical exclusion is a category of actions that a Federal agency has determined normally does not significantly affect the quality of the human environment within the meaning of section ( )(C) of NEPA). See also C.F.R. §. (a).

107 Notice of Intent to Prepare EA and Conduct Scoping, Fed. Reg. at,.

supporting document filed by an applicant or licensee. While subject to challenge, the Staff

notes that the Environmental Report is being su bmitted voluntarily because NRC regulations do

not require the submission of an Environmental Report for reactor license amendment requests

in this context.108 Therefore, the environmental report content requirements of C.F.R. §.

and other Part regulations for the content of environmental reports do not apply to the instant

Environmental Report. However, the Staffs environmental review is subject to, and will satisfy,

the requirements of NEPA and NRC regulations for environmental assessments and associated

determinations and findings, including discussion of the environmental impacts of the proposed

actions.

III. The Petition Proffers a Contention of Omission that Is Admissible in Part

A. Contention Admissibility Requirements

The NRCs contention admissibility requirements are set forth in C.F.R. §. (f) of

the Commissions Rules of Practice. To be admissible, a newly proffered contention must:

(i) Provide a specific statement of the issue of law or fact to be raised or controverted;

(ii) Provide a brief explanation of the basis for the contention;

(iii) Demonstrate that the issue raised in the contention is within the scope of the proceeding;

(iv) Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding;

(v) Provide a concise statement of the alleged facts or expert opinions which support the requestor's/petitioner's position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the requestor/petitioner intends to rely to support its position on the issue; and

(vi) provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact. This information must

108 See C.F.R. §. (a) (referring to environmental reports required by §§.,.,.,.,

.,.,., or., where none of the cited regulations apply to reactor license amendments in this context). Section. (d) refers to environmental reports for certain types of amendment requests, but these are not associated with restart of reactor operation for a plant in decommissioning.

include references to specific portions of the application (including the applicant's environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or, if 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 petitioner's belief[.]109

Failure to satisfy any of the six pleading requirements renders a contention inadmissible. 110

Further, [c]ontentions must be based on documents or other information available at the time

the petition is to be filed, such as the application, supporting safety analysis report,

environmental report or other supporting document filed by an applicant or licensee, or

otherwise available to a petitioner. 111

The §. (f)() requirements are intended to focus litigation on concrete issues and

result in a clearer and more focused record for decision. 112 The Commission has stated that it

should not have to expend resources to support the hearing process unless there is an issue

that is appropriate for, and susceptible to, resolution in an NRC hearing. 113 The NRCs

contention admissibility requirements are strict by design and intended to ensure that

adjudicatory proceedings are triggered only by substantive safety or environmental issues,

rooted in a reasonably specific factual or legal ba sis and to screen out ill-defined, speculative,

or otherwise unsupported claims. 114 Further, a proposed contention must be rejected if it raises

issues beyond the scope of the proceeding as established by the Commission's hearing

109 C.F.R. §. (f)()(i)-(vi).

110 Entergy Nuclear Operations, Inc. (Indian Point, Unit ) CLI--, NRC, ( ).

111 C.F.R. §. (f)( ).

112 Changes to Adjudicatory Process, Fed. Reg., (Jan., ) (final rule).

113 Id.

114 Exelon Generation Co. (Oyster Creek Nuclear Generating Station), CLI--, NRC, -

( ) (internal quotation marks omitted).

notice.115 Moreover, C.F.R. §. forbids challenges to NRC regulations in adjudicatory

proceedings, absent a petition for waiver or exception (accompanied by affidavit) that

demonstrates prima facie that special circumstances with respect to the subject matter of the

particular proceeding are such that the application of the rule or regulation (or a provision of it)

would not serve the purposes for which the rule or regulation was adopted. 116

Presiding officers are expected to examine cited materials to verify that they do, in fact,

support a contention.117 Also, a document cited by a petitioner as the basis for a contention is

subject to scrutiny both for what it does and does not show. 118 A presiding officer may view a

petitioner's supporting information in a light favorable to the petitioner, 119 but the presiding

officer is not to search through pleadings or other materials to uncover arguments and support

never advanced by the petitioners themselves. 120

B. Proposed Contention Is Inadmissible

Proposed Contention is stated as follows:

Holtec seeks an exemption from the requirements of C.F.R. §., pursuant to C.F.R. §.. The proposed exemption would remove the C.F.R.

§. (a)( ) restriction that prohibits reactor power operations and retention of fuel in the reactor vessel when the reactor is in the process of decommissioning.

Holtecs proposed exemption does not comply with the requirements for an

115 Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Unit ), NRC, ( )

(citing Public Service Co. of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units and ),

ALAB-, NRC, - ()).

116 C.F.R. §. (a)-(c). Whether special circumstances are present is assessed under the Millstone factors. Exelon Generation Co. (Limerick Generating Station, Units & ), CLI--, NRC,

( ) (citing Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units and ),

CLI- -, NRC, ( )).

117 USEC, CLI- -, NRC at.

118 NextEra Energy Seabrook, LLC (Seabrook Station, Unit ), CLI--, NRC, & n. ( ).

119 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI- -, NRC,

( ).

120 USEC, CLI- -, NRC at.

exemption set forth in C.F.R. §.. Therefore, the NRC must not allow Holtec to use this exemption. 121

In support of proposed Contention, the Petitioners provide several arguments

challenging the Exemption Request and whether it meets the criteria for granting an exemption

under C.F.R. §.. First, the Petitioners assert that Holtec has not demonstrated that

exigent circumstances are present. 122 Next, the Petitioners challenge Holtecs assertions that it

meets the exemption criteria in §.(a)() that the exemption is authorized by law and will not

present an undue risk to the public health and safety and common defense and security. 123

Additionally, the Petitioners argue that the Exemption Request does not meet any of the criteria

for demonstrating that special circumstances exist under §.(a)( )(i)-(vi).124

Staff Response: The Petitioners describe the Exemption Request as the linchpin of

Holtecs multifaceted scheme to remove Pa lisades from decommissioning status and return

Palisades to active power operations. 125 The Petitioners assert that because Holtec cannot

meet the exemption criteria in §., the NRC must not grant Holtecs requested

exemption.126 Specifically, the Petitioners argue that the Exemption Request must not be

granted because the Exemption Request does not demonstrate that: ) exigent circumstances

are present; ) the Exemption Request is authorized by law; ) there is no undue risk to public

health and safety; and ) special circumstances exist. While the Staff agrees that the Petitioners

may file contentions challenging the Exemption Request, the Staff concludes that proposed

Contention is inadmissible because it raises arguments that are outside the scope of this

121 Petition at.

122 Petition at -.

123 Petition at -.

124 Petition at -.

125 Petition at.

126 Petition at.

proceeding, immaterial to the findings the Staff must make to issue the Exemption Request,

unsupported, and do not raise a genuine dispute with the Exemption Request on a material

issue of fact or law.

. The Exemption Request is Inextricably Intertwined with the Restart-Related Amendment Requests

Although the Petitioners do not address this issue in their Petition, the Staff notes that

the Exemption Request is inextricably intertwined to the restart-related amendment requests,

and therefore, can be challenged through the filing of contentions in this license amendment

proceeding. As the Commission has noted, when a requested exemption raises questions that

are material to a proposed licensing action -- directly bears on whether the proposed action

should be granted -- a petitioner in an adjudicatory proceeding on the licensing action may raise

arguments relating to the exemption request. 127 In the Staffs view, the Exemption Request is

inextricably intertwined with the restart-re lated amendment requests because the NRC may not

make the findings to issue these amendment s without the Exemption Request being granted. 128

Accordingly, the Exemption Request is subject to challenge in this license amendment

proceeding.129

Although the Exemption Request is subject to challenge in this adjudicatory proceeding,

as described below, proposed Contention is inadmissible because it raises arguments that are

outside the scope of this proceeding, immaterial to the findings the Staff must make to issue the

127 See Palisades, CLI- -, NRC at.

128 NRC approval of the restart-related amendment requests would, among other things, amend the license to authorize power operations at Palisades. See, e.g., Primary Amendment Request, at. To grant the restart-related amendments, the NRC must find that the request complies with NRC regulations. See, e.g., C.F.R. §§. ;.. However, to make these findings, the prohibition on operation found in C.F.R. §. (a)( ) must be removed for Palisades through the exemption process.

129 See Order of the Secretary (denying petition to intervene and request a hearing on the Exemption Request), at - (Dec., ) (unpublished) (ML A ); Order of the Secretary (providing clarification to the Petitioners question regarding the Exemption Request), at - (Sept., )

(unpublished) (ML A ).

Exemption Request, unsupported, and do not raise a genuine dispute with the Exemption

Request on a material issue of fact or law in accordance with C.F.R. §. (f)()(iii)-(vi).

. The Petitioners Arguments Regarding Exigent Circumstances Are Inadmissible Because They Concern Immaterial Issues and Do Not Raise a Genuine Dispute with the Exemption Request on a Material Issue of Fact or Law

In proposed Contention, the Petitioners appear to assert that the Exemption Request

should be denied because it does not demonstrate that exigent circumstances are present. 130

However, the Petitioners do not demonstrate the materiality of their concern or that there is a

genuine, material dispute with the application because the Petitioners rely on outdated case law

and Commission policy that predates the current §. exemption standards promulgated in

( Specific Exemptions Rule) 131 that apply to the Exemption Request. For example, the

Petitioners quote from a D.C. Circuit case for its argument that exemptions under §.

are only available in the presence of exigent circumstances. 132 But the D.C. Circuit case, and

the WPPSS case it references, both predate the Specific Exemptions Rule. 133

Similarly, the Petitioners point to a Federal Register notice and assert that the

Commission has also emphasized that §. exemptions are to be granted sparingly and only

in cases of undue hardship, 134 but this notice also predates the Specific Exemptions Rule.

130 Petition at -.

131 Specific Exemptions; Clarification of Standards, Fed. Reg., (Dec., ) (final rule) (

Specific Exemptions Rule).

132 Petition at (citing NRDC v. NRC, F. d (D.C. Cir. ) (citing Washington Public Power Supply System (WPPSS Nuclear Project Nos. and ), CLI- -, NRC, ())).

133 NRDC, F. d at ; WPPSS at. The Staff also notes that these cases pertain to Commission policy specifically related to exemptions from the requirements from §.(c) for site preparation activities, which is not relevant to HDIs Exemption Request from §. (a)( ). Also, §.(b) provides specific criteria for exemptions from §..

134 Petition at (citing Pre-Construction Permit Activities, Fed. Reg.,,, (Apr., )).

The Staff notes that the portion of this Federal Register notice referenced in the Petition explains the Commission's policy of granting exemptions from §.(c) sparingly and only in cases of undue hardship.

Further, the Petitioners point to the Commissions decision in Shoreham, which

held that exemptions under §. must demonstrate the presence of exigent or exceptional

circumstances that consider the equities of the situation. 135 Although Shoreham served as a

primary basis for the changes incorporated into the Specific Exemptions Rule,136 the final

version of the rule did not wholly adopt the equities considerations discussed in Shoreham.

Indeed, the Specific Exemptions Rule revised the standards for granting an exemption

under C.F.R. §., and added a provision in §.(a)( ) that the Commission will not

consider granting an exemption unless special circumstances are present. 137 The Specific

Exemptions Rule does not use the terminology that exigent circumstances or exceptional

circumstances must be present nor does it include all the equities considerations discussed in

Shoreham.138 Thus, the legal standard applicable to the Exemption Request is the version of

§. promulgated in the Specific Exemptions Rule, not the case law cited in the Petition.

Accordingly, to the extent the Petitioners assert that the Exemption Request must demonstrate

exigent or exceptional circumstances, these arguments are inadmissible because they do not

reflect the current version of the requirements applicable to the Exemption Request, and

therefore, are not material to the NRCs findings to issue the Exemption Request under

§. (f)()(iv) and do not demonstrate a genuine dispute with the application on a material

issue of fact or law under §. (f)()(vi).

135 Petition at (citing Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit ), CLI- -,

NRC, n. ( ); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit ),

LBP- -, NRC, - ( )).

136 Specific Exemptions Rule, Fed. Reg. at,.

137 Id. at, -.

138 Compare Shoreham, CLI- -, NRC at n. with §.(a)( )(i)-(vi) (describing the special circumstances criteria).

. The Petitioners Arguments That the Exemption Request Is Not Authorized by Law Are Inadmissible Because They Raise Issues That Are Out of Scope, Immaterial, and Do Not Raise a Genuine Dispute with the Application

In proposed Contention, the Petitioners assert that the Exemption Request does not

satisfy the criterion in §.(a)() that granting the exemption must be authorized by law.

Specifically, the Petitioners argue that Holtec does not cite any law that authorizes the

exemption, but merely says that the Atomic Energy Act does not prohibit it. 139 The Petitioners,

however, do not accurately characterize HDIs justification in the Exemption Request. In its

Exemption Request, HDI states that the requested exemption does not result in a violation of

the Atomic Energy Act of, as amended, or the Commissions regulations, not simply that

the AEA does not prohibit the exemption. 140 Moreover, the Petitioners provide no legal basis for

their assertions that HDIs justification in the Exemption Request is deficient or that affirmative

legal authorization must be demonstrated. 141 Indeed, HDIs justification is consistent with the

preamble to the Specific Exemptions Rule which states, As in the existing rule, an

exemption must be authorized by law. Apart from the very fact of granting the exemption relief

itself, the granting of the exemption cannot be in violation of other applicable laws, such as the

Atomic Energy Act or the National Environmental Policy Act. 142 Thus, by demonstrating that the

exemption is not in violation of the AEA or other applicable laws, a licensee effectively meets

the §.(a) criterion that the exemption is authorized by law.

The Petitioners also seem to take issue with HDIs reference to the PRM Denial

and assert that in this denial, the Commission mentioned in passing that the existing

regulations might be available, through an exemption, to accomplish the purpose, but §.

139 Petition at.

140 Exemption Request, Enclosure, at.

141 Petition at.

142 Specific Exemptions Rule, Fed. Reg. at,.

was not mentioned.143 However, in the PRM Denial, the Commission stated that the NRC

may consider requests from licensees to resume operations under the existing regulatory

framework.144 As discussed in Discussion Section II.A, the §. exemption process is part of

the existing regulatory framework and, therefore, may be used by a licensee to seek approval to

authorize restart of a reactor in decommissioning. Thus, to the extent that the Petitioners are

challenging the existing regulatory framework or the exemption process in §., such

challenges are disallowed by C.F.R. §. and are otherwise immaterial and outside the

scope of this proceeding. For these reasons, the Petitioners arguments that HDI has not

demonstrated that the Exemption Request is authorized by law is inadmissible because it raises

issues that are out of scope, immaterial, and do not raise a genuine dispute with the Exemption

Request on a material issue of fact or law under C.F.R. §. (f)()(iii), (iv), and (vi).

. The Petitioners Arguments That the Exemption Request Does Not Meet the No Undue Risk Standard Are Inadmissible Because They Raise Issues That Are Out of Scope, Immaterial, and Do Not Raise a Genuine Dispute with the Application

In proposed Contention, the Petitioners also argue that the Exemption Request does

not satisfy the criteria in §.(a)() that granting the exemption will not present an undue risk

to the public health and safety and common defense and security. 145 The Petitioners challenge

the Exemption Request by asserting that Holtec simply states that Palisades will be returned to

the condition it was in prior to decommissioning 146 which they claim is problematic because

there were significant safety problems with the plant and risks to the public health and safety

prompted Palisades to be shut down earlier than anticipated. 147 As support, the Petitioners

143 Petition at -.

144 PRM Denial, Fed. Reg. at,.

145 Petition at.

146 Petition at.

147 Petition at.

point to the declaration of their expert, Arnold Gundersen (Gundersen Declaration). 148

Specifically, the Petitioners reference Mr. Gunder sens assertions that [t]he overall design of

the Palisades reactor is not licensable to st century standards, that Palisades is one of the

worlds most decrepit and flawed nuclear reactors, and that when Entergy sold Palisades to

Holtec, the reactor was operating with poorly maintained parts, woefully inadequate safety

equipment and outmoded components. 149 However, neither the Petition nor the Gundersen

Declaration contain any factual basis to suppor t these conclusory assertions. Conclusory

assertions, even by an expert, do not support the admissibility of a contention. 150 Moreover, the

Petitioners, through their Petition and Gundersen De claration, do not specifically challenge or

dispute any portion of the Exemption Request or the restart-related amendments that are the

subject of this proceeding.

Additionally, the Petitioners mischaracterize the arguments in the Exemption Request as

simply stating that the plant will be returned to the condition it was in prior to decommissioning.

HDIs primary argument that the Exemption Request will not present an undue risk to public

health and safety is based on its proposal to restore the Palisades licensing basis through NRC

review and approval of the restart-related amendment requests and Restart Transfer Request,

which will ensure compliance with NRC safety regulations. 151 HDI further states in its Exemption

Request that NRC inspection activities during de velopment and implementation of the return to

service plans provide added assurance that SSCs will function as required by the reinstated

licensing basis.152 The Petitioners do not provide any information in the Petition or the

148 See Petition, Exhibit A (Gundersen Declaration).

149 Petition at - (citing Gundersen Declaration, at, ).

150 See USEC, CLI- -, NRC at.

151 Exemption Request, Enclosure, at.

152 Id.

Gundersen Declaration to address or challenge any of the justifications HDI presented in the

Exemption Request.

Each of the restart-related licensing requests - the license amendment and transfer

requests - address changes to the Palisades license, UFSAR, emergency preparedness plans,

licensed operating authority, etc., for a reactor in operation, and each of these changes are

subject to specific NRC safety regulations. Lice nsees must comply with NRC safety regulations,

and compliance with NRC safety regulations is pr esumptively protective of public health and

safety.153 With respect to licensing actions, the NRC adheres to the no undue risk standard,

which the Commission has stated is equivalent to the adequate protection standard set out in

AEA § a. ( U.S.C. § (a)), governing approval of licensing actions. 154 Thus, any

challenge to whether the plant will safely operate should address the safety regulations

pertinent to these requests. While the Petitioners and their expert make many conclusory

assertions regarding plant safety at Palisades, they do not assert that any specific safety

regulations are unmet. Also, the restart-related amendment and transfer requests provide

opportunities to raise concerns that the propos ed restart does not satisfy the NRCs safety

regulations. Therefore, the Petitioners challenge to the Exemption Request is effectively a

back-door challenge to the NRCs existing safety regulations using the general no undue risk

standard in §.(a)() and is barred under §..

Further, contrary to the Petitioners assertions, the Staff notes that the submission of the

§. (a)() certifications was a voluntary action on the part of Entergy, not the result of any

NRC finding or action that a safety problem existed. 155 The no undue risk standard in

153 See, e.g., AmerCen Energy Co., LLC (Oyster Creek Nuclear Generating Station), LBP- -, NRC

, ( ) (citing Maine Yankee Atomic Power Company (Maine Yankee Atomic Power Station),

ALAB-, AEC, ()).

154 Revision of Backfitting Process for Power Reactors, Fed. Reg.,,, (June, ) (Final Rule).

155 See generally Palisades. (a)() Certifications.

§.(a)() is particularly pertinent where a licensee proposes meeting the underlying purpose

of the specific safety requirements in NRC regulations in an alternate manner. In that case, the

licensee must ordinarily show that the proposed alternate approach is another way to meet the

general safety objective of the regulation. But §. (a)( ) does not impose specific safety

requirements. It simply demarcates the point at which a licensee is no longer authorized to

operate a reactor. Accordingly, there is no reason (and the Petitioners do not provide any

reason) why meeting the NRCs safety regulations for operation would somehow fail to meet the

no undue risk standard. For these reasons, the Petitioners arguments challenging whether the

Exemption Request has met the no undue risk standard are inadmissible because they are

unsupported and do not present a genuine dispute with the application on a material issue of

law or fact under C.F.R. §. (f)()(vi).

The Petitioners also rely on Mr. Gundersens assertions challenging Holtecs void of

corporate nuclear power plant construction and operating experience, 156 and arguments that

the project underestimates the extreme costs and duration for making repairs. 157 However,

these assertions regarding Holtecs purported lack of operating experience and extreme project

costs appear to challenge Holtecs technical and financial qualifications to operate Palisades,

which are issues relevant to the Restart Transfer Request and not any of the restart-related

license amendment requests that are the subjec t of this proceeding or the Exemption Request

that is intertwined with the amendment requests. 158 Accordingly, these arguments, which the

Petitioners could have properly raised within the scope of the license transfer proceeding, are

156 Petition at - (citing Gundersen Declaration, at ).

157 Petition at (citing Gundersen Declaration, at ).

158 See C.F.R. §. (b)()(i) (stating that a license transfer application for an operating license shall include, as much of the information described in §§. and. of this part with respect to the identity and technical and financial qualifications of the proposed transferee as would be required by those sections if the application were for an initial license). As noted above, three of the Petitioners filed a hearing request in the transfer proceeding; however, that request did not raise any challenges to Holtecs financial or technical qualifications.

inadmissible here because they fall outside the scope of this license amendment proceeding

and are immaterial to the findings the Staff must make to issue the restart-related license

amendments and Exemption Request.

For the reasons discussed above, the Petitioners have not demonstrated that granting

the Exemption Request will present an undue risk to the public health and safety and common

defense and security. Their contention is therefore inadmissible because it raises concerns that

are out of scope, immaterial, unsupported, and do not raise a genuine, material dispute with the

application under C.F.R. §. (f)()(iii)-(vi).

. The Petitioners Arguments That the Exemption Request Does Not Meet Any of the Special Circumstances Criteria in §.(a)( ) Are Inadmissible Because They Raise Issues That Are Out of Scope, Immaterial, Unsupported, and Do Not Raise a Genuine Dispute with the Application

In proposed Contention, the Petitioners assert that the Exemption Request does not

meet any of the special circumstances criteria in C.F.R. §.(a)( ).159 The regulations in

§.(a)( ) only require the presence of one of the special circumstances listed in

§.(a)( )(i)-(vi). Thus, in order to prevail in th eir assertion that the Exemption Request

should be denied, the Petitioners must demonstrate that no special circumstances exist that

warrant approval of the exemption. As explained below, the Petitioners present several flawed

arguments that ultimately fail to demonstrate that the Exemption Request provides no special

circumstances under §.(a)( ). Accordingly, the Petitioners Contention is inadmissible

because it raises issues that are out of scope, immaterial to the findings the Staff must make to

issue the Exemption Request, unsupported, and does not raise a genuine dispute with the

Exemption Request on a material issue of fact or law under C.F.R. §. (f)()(iii)-(vi).

159 Petition at -.

a. The Petitioners Arguments Regarding the Special Circumstances Criteria in

§.(a)( )(ii) Do Not Raise a Genuine, Material Dispute with the Exemption Request

In proposed Contention, the Petitioners assert that the Exemption Request does not

meet the special circumstances criteria in C.F.R. §.(a)( )(ii) that application of the

regulation in the particular circumstances would not serve the underlying purpose of the rule. 160

Specifically, the Petitioners assert that the purpose of §. is to ensure that the reactor is

certified to be in decommissioning status in order to facilitate decommissioning, and that [i]t is

absurd to think that §. is not serving its purpose in this case considering that Palisades

has been in the process of decommissioning since June.161

But the Petitioners seem to misunderstand the standard in §.(a)( )(ii). To determine

whether the special circumstances criteria in §.(a)( )(ii) are met, the particular

circumstances of the case must be considered. 162 The particular circumstances of the case, as

described in the Exemption Request, are that HDI, a licensee in decommissioning for which the

§. (a) certifications have been docketed, is seeking to restart the reactor and exit the

decommissioning process. 163 Considering that HDI is seeking to restart the reactor and exit the

decommissioning process, HDI must demonstrate that the §. (a)( ) prohibition on operation

would not serve the underlying purpose of the rule under these particular circumstances. The

Petitioners do not explain, nor does the Staff perceive, why the purpose of §. (a)()-( ), or

the regulation itself, should be interpreted to prohibit a licensee from requesting an exemption to

restart operation of a plant in decommissioning if the licensee seeks to operate the reactor

again. Ultimately, if restart is approved, the facility would still need to be decommissioned,

160 Petition at -.

161 Petition at.

162 C.F.R. §.(a)( )(ii) (Application of the regulation in the particular circumstances would not serve the underlying purpose of the rule or is not necessary to achieve the underlying purpose of the rule).

163 Exemption Request, Enclosure, at.

following submission and docketing of the §. (a) certifications after any subsequent period

of operation.

The Petitioners also challenge the statement in the Exemption Request that §. (a)

serves to notify the NRC of the licensees intent to place the plant into a decommissioning

status and argue that if the intent of the rule was to provide notification, then Holtec could

rescind the certification. 164 While it is clear on the face of the regulations that the §. (a)

certifications serve the purpose of notifying the NRC of the licensees decommissioning plans, 165

the Petitioners provide no legal basis for why an exemption from the §. (a)( ) restriction

prohibiting power operation would be unnecessary to restart operations. Moreover, the

Exemption Request provides another purpose for the §. (a)( ) rulethat the certifications

also identify the point in time when a reactor formally enters the decommissioning process. 166

The Staff notes that the statement that the certifications also identify the point in time when a

reactor formally enters the decommissioning process 167 is an accurate summary of the plain

language of §. (a)()-( ) and the Petitioners do not dispute this purpose. For these reasons,

the Petitioners arguments are inadmissible because they do not raise a genuine dispute with

the Exemption Request on a material issue of fact or law under C.F.R. §. (f)()(vi).

b. The Petitioners Arguments Regarding the Special Circumstances Criteria in

§.(a)( )(iii) Do Not Raise a Genuine, Material Dispute with the Exemption Request

In proposed Contention, the Petitioners assert that the Exemption Request does not

meet the special circumstances criteria in C.F.R. §.(a)( )(iii) that compliance would

164 Petition at.

165 See e.g., C.F.R. §. (a)()(i) (When a licensee has determined to permanently cease operations the licensee shall, within days, submit a written certification to the NRC....); §. (a)()(ii) (Once fuel has been permanently removed from the reactor vessel, the licensee shall submit a written certification to the NRC.... ).

166 Exemption Request, Enclosure at.

167 Id.

result in undue hardship or other costs that are significantly in excess of those contemplated

when the regulation was adopted. 168 The Exemption Request states that without the exemption,

HDI would not be able to obtain authorization to operate Palisades which would result in an

undue hardship, by preventing the return to the Michigan electrical grid of megawatts of

safe and reliable carbon-free electricity, and a dependable baseload generation vital to Michigan

residents and businesses, thus unfairly hindering economic development in the state. 169 The

Petitioners challenge this argument and assert that [e]ven if, as Holtec contends, reopening

Palisades would benefit the people of Michigan (a concept with which Petitioners vehemently

disagree), that does not show an undue hardship on Holtec. 170 The Petitioners appear to be

arguing that the Exemption Request does not show an undue hardship to Holtec itself.

However, the Petitioners provide no legal basis for the assertion that undue hardship must be

experienced by the licensee or applicant itself. Therefore, the Petitioners do not raise a genuine,

material dispute with the Exemption Request.

The Petitioners also point to NRDC v. NRC, and argue that Holtec has not demonstrated

an exigent circumstance or undue hardship. 171 However, as previously stated, NRDC v. NRC

predates the Specific Exemptions rule that promulgated the version of §.(a)( )

currently applicable to the Exemption Request, and is, therefore, inapplicable here. Regardless,

the Petitioners do not explain how the case supports their position that HDI has not

demonstrated undue hardship. Finally, to the extent the Petitioners are arguing that the

Exemption Request should have considered the economic interest of others, 172 these

168 Petition at -.

169 Exemption Request, Enclosure, at.

170 Petition at.

171 Petition at (citing NRDC, F. d at ).

172 Petition at (Regional grid planners, other utilities, business forecasters and their clients all have had to adjust to the decision. The class of those whose economic interests must be taken into consideration along with those of Holtec is quite extensive.).

arguments appear to contradict the Petitioners prior argument that Holtec needs to show undue

hardship on itself. For the reasons discussed abov e, the Petitioners arguments are inadmissible

because they do not raise a genuine dispute with the Exemption Request on a material issue of

fact or law under C.F.R. §. (f)()(vi).

c. The Petitioners Arguments Regarding the Special Circumstances Criteria in

§.(a)( )(vi) Are Out of Scope, Immaterial, Unsupported and Do Not Raise a Genuine, Material Dispute with the Exemption Request

In proposed Contention, the Petitioners assert that the Exemption Request does not

meet the special circumstances criteria in C.F.R. §.(a)( )(vi) that there is present any

other material circumstance not considered when the regulation was adopted for which it would

be in the public interest to grant an exemption. 173 In doing so, the Petitioners provide several

arguments that assert that Holtec has not dem onstrated that the Exemption Request is in the

public interest.174 The Petitioners arguments, however, rely on outdated legal authorities and

standards that are inapplicable to HDIs Exemption Request from §. (a)( ). Specifically, the

Petitioners rely on CLI- - and CLI- - and characterize the public interest standard as

stringent and note that exemptions of this sort are to be granted sparingly and only in

extraordinary circumstances. 175 But both of these cases predate the Specific Exemptions

rule which promulgated the version of §. applicable to the Exemption Request and focus

on exemptions under a different standard - §.(b), which applies only to exemption requests

from the requirements in §. related to site preparation activities. 176

173 Petition at -.

174 Petition at -.

175 Petition at (citing United States Department of Energy (Clinch River Breeder Reactor Plant), CLI-

-, NRC, ( ) (citing WPPSS, CLI- -, NRC ())).

176 See Clinch River Breeder Reactor, CLI- -, NRC at, - (applying the exemption standards in §.(b)); WPPSS, CLI- -, NRC at (referencing the exemption standards in

§.(b)). See also C.F.R. §.(b).

In the Exemption Request, HDI relies on the NRC regulatory basis document developed

in support of the proposed decommissioning rule and states that the NRC designed the

current CFR Part regulations for reactor decommissioning for plants that were expected to

be permanently shut down at the end of their operating license term. 177 The Exemption

Request also states that the current regulation in §. was not written to address the unique

[Palisades] circumstance of returning to power operations after the §. certifications have

been docketed by the NRC. 178 HDI also points to the support from the Michigan Governor

demonstrating the states urgency and necessity for the reauthorization of power operations

and Palisades.179

The Petitioners appear to challenge HDIs arguments and attempt to assert that the NRC

may have considered the possibility of restarting a reactor when it promulgated the

decommissioning rules,180 but they provide no support for this position, nor do they

acknowledge or challenge HDIs reference to the NRC regulatory basis document as support for

HDIs position. Similarly, the Petitioners s peculate, without any support, that if the NRC had

considered the possibility of restarting a decommissioning reactor, it would have provided for

that possibility in the rules. Moreover, the Petitioners assert that Holtec must establish that

restarting Palisades is in the public interest, 181 but they do not challenge the public interest

justification in the Exemption Request related to the State of Michigans urgency and necessity

for reauthorization of power operations at Palisades as a material circumstance not considered

177 Exemption Request, Enclosure, at (citing Regulatory Improvements for Power Reactors Transitioning to Decommissioning, Regulatory Basis Document (Nov., ) (MLA)).

178 Exemption Request, Enclosure, at -.

179 Id. at.

180 Petition at.

181 Petition at.

when §. was approved.182 For these reasons, the Petitioners arguments are unsupported

and do not demonstrate that a genuine dispute exists with the application on a material issue of

fact or law.

Next, the Petitioners appear to challenge Holtecs approach to seeking reauthorization to

restart power operations at Palisades. The Petitioners state that Holtec insists that its scheme

to restart is just a simple matter of getting the requested exemption and then a few license

amendments.183 The Petitioners then quote a portion of an interview with Commissioner

Crowell and assert that Commissioner Crowell acknowledges that a Palisades restart would be

a difficult and complicated process. 184 The Petitioners arguments here, however, are not clear

and they do not explain how the Commissioners statements support their position that the

criteria in §.(a)( )(vi) have not been met. To the extent that the Petitioners are challenging

Holtecs use of the existing regulatory fr amework, such arguments are precluded by

C.F.R. §. and are otherwise immaterial and outside the scope of this proceeding.

The Petitioners also argue that Holtec relies on the fact of having monetary support

appropriated by the Michigan legislature to support its argument that restarting Palisades is in

the public interest.185 However, this assertion lacks any factual basis. The Exemption Request

does not appear to rely on monetary support in the justification of the §.(a)( )(vi) criteria,

and the Petitioners provide no specific references or page numbers to any such discussion.

Accordingly, these arguments are unsupported and do not raise a genuine, material dispute with

the application.

182 Exemption Request, Enclosure, at.

183 Petition at.

184 Petition at -.

185 Petition at.

The Petitioners argue that political support of Holtec does not equate to a scientific or

technical basis for the restart scheme. 186 As support, the Petitioners attempt to rely on their

expert, Mark Z. Jacobson, who purportedly makes it clear that nuclear power is not the energy

source of the future, and consequently restarting Palisades is not in the public interest. 187

However, the Petitioners claims appear to lack sufficient expert support as the discussion

referenced in the Petition does not actually appear in Mr. Jacobsons Declaration that is

attached as Exhibit C to the Petition. 188 Moreover, to the extent that the Petitioners arguments

here seek to challenge the State of Michigans decision-making with respect to its energy and

economic policies related to nuclear power, the Staff notes that those matters fall outside the

NRCs regulatory authority.189 Accordingly, the Petitioners assertions are unsupported and

immaterial to the findings the Staff must make to issue the Exemption Request.

The Petitioners also rely on statements from Kevin Kamps and Arnold Gundersen

regarding Holtecs fixed-price power purchase agreement to assert that public monetary support

from the State of Michigan and Federal Government does not mean Holtecs scheme is in the

public interest.190 However, these assertions also appear to lack expert support as neither

Kevin Kamps nor Arnold Gundersen purport to be experts regarding the financial arguments

raised by the Petitioners in proposed Contention.191 Moreover, as noted above, the Petitioners

186 Petition at -. The Staff notes that the Petitioners statements regarding political support appear to be based on monetary support as discussed in the Petitioners preceding sentence. Id.

187 Petition at.

188 Compare Petition at with Petition, Exhibit C (Declaration of Mark Z. Jacobson). The Petitioners cite to page of Exhibit C, but the th page appears to be an unrelated portion of Mr. Jacobsons Curriculum Vitae (CV).

189 See Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, Fed. Reg.

,,, (June, ) (The NRC acknowledges the primacy of State regulators and utility officials in defining energy requirements and determining the energy mix within their jurisdictions.).

190 Petition at -.

191 The Declaration of Kevin Kamps describes Mr. Kamps as a radioactive waste specialist, and does not include a resume or CV. See Petition, Exhibit B (Kamps Declaration). Similarly, based on a review of

do not challenge the specific public interest justifications in the Exemption Request. Additionally,

to the extent the Petitioners challenge Holtecs scientific or technical basis for restart, they do

not assert that any specific safety regulations are unmet or specify some sort of deficiency with

the restart-related amendments subject to this proceeding. Therefore, the Petitioners do not

demonstrate that there is a genuine, material dispute with the application.

For the reasons discussed above, the Petitioners assertions are inadmissible because

they are out of scope, immaterial, unsupported and do not raise a genuine, material dispute with

the Exemption Request under §. (f)()(iii)-(vi).

d. The Petitioners Do Not Challenge or Do Not Otherwise Raise a Genuine, Material Dispute with the Exemption Request Regarding the Special Circumstances Criteria in §.(a)( )(i), (iv), and (v)

The Petitioners also mention the special circumstances criteria under §.(a)( ) that

HDI does not rely upon in its Exemption Request, including §.(a)( )(i), (iv), and (v). The

Petitioners do not appear to raise any challenges with respect to the criteria in §.(a)( )(i)

and (v), and acknowledge that Holtec does not rely on these criteria in the Exemption

Request.192 Regarding the criteria in §.(a)( )(iv) that special circumstances are present

where [t]he exemption would result in benefit to public health and safety that compensates for

any decrease in safety that may result from the grant of the exemption, the Petitioners assert

that restart of Palisades would result in harm to public health and safety. 193 Specifically, the

Petitioners rely on statements from Kevin Kamps regarding Palisades embrittled reactor. 194

his Declaration and CV, the Staff notes that Mr. Gundersen, who has a Masters degree in Nuclear Engineering and extensive background in nuclear engineering, does not appear to have formal education or training relevant to the financial topics discussed in proposed Contention. See Petition, Exhibit A.

192 Petition at,.

193 Petition at.

194 Petition at (citing Petition, Exhibit B, at ).

However, Mr. Kamps provides no factual basis for his conclusory assertions, 195 nor does he

establish his expertise on the subject of embrittlement. 196 Nevertheless, as the Petitioners

acknowledge, Holtec does not actually rely §.(a)( )(iv) to support their justification in the

Exemption request. Accordingly, the Petitioners assertions are inadmissible because they are

unsupported and do not raise a genuine, material dispute with the Exemption Request under

§. (f)()(v)-(vi).

For the reasons discussed above, proposed Contention is not admissible under

C.F.R. §. (f)()(iii), (iv), (v), and (vi).

C. Proposed Contention Is Inadmissible Because It Raises Claims that Are Immaterial and Lack Factual Support

Proposed Contention is stated as follows:

An Environmental Impact Statement (EIS), not an Environmental Assessment (EA), must be compiled for the proposed restart of the Palisades reactor. An EIS is required because of the major regulatory decision sought by Holtec. 197

In proposed Contention, Petitioners argue that Holtec is seeking the issuance or

renewal of a reactor operating license and that, consequently, the Staff must prepare an EIS in

accordance with C.F.R. §. (b).198 Petitioners also assert that there is no regulatory

pathway to restart reactor operations at Palisades other than by applying for a new operating

license under C.F.R. Part,199 and that even if the existing regulatory framework could be

used, an EIS would still be required under C.F.R. §. (b)( ).200 Petitioners additionally

claim that Holtec has failed to submit an environmental report and that the environmental

195 See USEC, CLI- -, NRC at.

196 As explained previously, the Kamps Declaration describes Mr. Kamps as a radioactive waste specialist, and does not include a resume or CV. See Kamps Declaration.

197 Petition at.

198 Id. at.

199 Id. at.

200 Id. at.

document Holtec did submit fails to comply with NRC requirements for environmental reports. 201

Finally, Petitioners assert that the potential restart of reactor operations at Palisades is a major

federal action under NEPA,202 and that an EIS is required due to the major regulatory decision

sought by Holtec.203

Staff Response: Proposed Contention does not satisfy C.F.R. §. (f)()(iv), (v),

and (vi) and therefore is inadmissible because it ( ) addresses matters that are immaterial to the

NRC findings necessary to grant the license amendment requests, ( ) lacks adequate factual

support, and ( ) does not demonstrate a genuine dispute with the licensee on a material issue

of law or fact.

First, Petitioners assert that Holtec seeks the issuance or renewal of a full power or

design capacity license to operate Palisades, i.e., an operating license. 204 This is incorrect. As

part of the potential restart of reactor operations at Palisades, HDI has submitted four license

amendment requestswhich are the subject of this proceedingamong other related requests.

HDI has not submitted an application for a new or renewed operating license under C.F.R.

Part.

Second, Petitioners claim that with the end of operations at Palisades, Holtec now has

an operating license with conditions that permanently shut down the reactor. 205 As a result,

Petitioners assert, [t]here is no regulatory pathway by which Holtec may restart the reactor

other than through submission of a new operating license application under C.F.R. Part,206

201 Id. at.

202 Id. at -.

203 Id. at.

204 Id. at.

205 Id.

206 Id. at.

and that, as a consequence, the Staff must prepare an EIS. 207 But as discussed in Discussion

Section II.A above, the Staffs consideration of all restart-related requests is governed by the

existing regulations and Commission-establishe d policy that the NRC may consider requests

from licensees to resume operations under the existing regulatory framework. 208 In carrying out

this Commission policy, the Staff has concluded, generally, that a facility licensee in

decommissioning may apply to use the license amendment, transfer, and exemption processes,

as applicable, to seek approval for the actions necessary to authorize the restart of a reactor in

decommissioning.

As explained in Discussion Section II.A above, the Staff reached this conclusion in part

because the C.F.R. Part operating license for a reactor in decommissioning continues in

effect during the decommissioning process until it is terminated, such that entering the

decommissioning process effectuates a change in license authority but does not change the

form of the license itself. 209 In other words, the Palisades license remains a renewed facility

operating license until terminated at the conclusion of the decommissioning process. 210 This

conclusion is also supported by other regulatory provisions, including C.F.R. §§. and

. and the Decommissioning Rule, as well as by Commission precedent and by the

Palisades license itself.211

As a result, the NRCs regulatory requirements for operating licenses continue to apply

to Palisades, and licensing and regulatory requests wi thin the existing regulatory framework,

207 Id. (citing C.F.R. §. (b)( ) (requiring preparation of an EIS for a new or renewed license to operate a nuclear power reactor under C.F.R. Part )).

208 PRM Denial, Fed. Reg. at, (denying a petition for rulemaking).

209 See supra Discussion Section II.A; C.F.R. §.(b) (Each license for a facility that has permanently ceased operations, continues in effect beyond the expiration date to authorize ownership and possession of the production or utilization facility, until the Commission notifies the licensee in writing that the license is terminated.) (emphasis added).

210 See supra Discussion Section II.A.

211 See id.

including license amendment, transfer, and exemption requests, may be used to restore the

licensed authority for reactor operation. 212 In accordance with this Commission policy and acting

within the existing regulatory framework, HDI submitted four license amendment requests,

among other related requests, to support the potential restart of reactor operations at Palisades.

The Staff accepted these requests for docketing and is in the process of conducting its detailed

technical review to determine their sufficiency; no approvals have been granted. Therefore, the

Petitioners argument is incorrect.

Petitioners also assert that an EIS must still be prepared even if it is assumed,

arguendo, that the existing regulatory framework could be used to enable restart of a reactor in

decommissioning, because C.F.R. §. (b)( ) requires preparation of an EIS.213 But this

provision applies to applications for new or renewed operating licenses and is irrelevant to this

proceeding on HDIs license amendment requests. 214 Petitioners arguments related to the

purported need for an EIS are therefore inadmissible under C.F.R. §. (f)()(iv), (v), and

(vi) because they address matters that are imma terial to the NRC findings necessary to grant

the license amendment requests, lack adequate factual support, and fail to show that a genuine

dispute exists on a material issue of law or fact.

Third, Petitioners argue that Holtec has not submitted an environmental report and that

the Staff is incorrectly treating Enclosure of the Exemption Request as an environmental

report.215 But as discussed in Discussion Section II.B above, the new and significant

environmental review found in Enclosure of the Exemption Request was submitted to aid the

NRC in its environmental review, which the Staff is conducting under NEPA § ( ), among

212 See id.

213 Petition at.

214 C.F.R. §. (b)( ) (requiring an EIS for the [i]ssuance or renewal of a full power or design capacity license to operate a nuclear power reactor under C.F.R. Part ).

215 Petition at.

other provisions. Enclosure therefore meets the definition of Environmental Report in

C.F.R. §..216

Petitioners also claim that the requirements in C.F.R. §§. and. apply to

HDIs Environmental Report and that the Environmental Report fails to comply with those

requirements.217 This is incorrect because HDI is not an applicant for a new or renewed

operating license or otherwise requesting a licensi ng action of the type to which those sections

apply.218 But even assuming either §§. or. were applicable here, Petitioners do not

explain how the Environmental Report fails to comply with the requirements in those provisions

or point to specific portions of the Environmental Report that are deficient. Nor do Petitioners

explain how their assertion of deficiencies in the Environmental Report is relevant to proposed

Contention, which relates to whether the NRC must prepare an EIS in the first instance

instead of an EA. Petitioners arguments related to the Environmental Report address matters

that are immaterial to the NRC findings neces sary to grant the license amendment requests,

lack factual support, and fail to show that a genuine dispute exists on a material issue of law or

fact, and therefore are inadmissible under C.F.R.. (f)()(iv), (v), and (vi).

Lastly, Petitioners argue that restarting reactor operations at Palisades is a major

federal action under NEPA,219 and the caption for proposed Contention asserts that the NRC

216 C.F.R. §. (defining Environmental Report as a document submitted to the Commission by an applicant for a permit, license, or other form of permission, or an amendment to or renewal of a permit, license or other form of permission, or by a petitioner for rulemaking, in order to aid the Commission in complying with section ( ) of NEPA) (emphasis added).

217 Petition at.

218 See C.F.R. §. (b)-(c) (specifying environmental-report requirements applicable to new and renewed operating license applicants); §. (a) (referring to environmental reports required by

§§.,.,.,.,.,.,., or., where none of the cited regulations apply to reactor license amendments in this context). Section. (d) refers to environmental reports for certain types of amendment requests, but these are not associated with restart of reactor operation for a plant in decommissioning.

219 Petition at -.

must prepare an EIS because of the major regulatory decision sought by Holtec. 220 But

whether an EIS must be prepared does not turn on whether a proposed NRC action is a major

federal action under NEPA. Pursuant to NEPA § ( )(C), a detailed statement (i.e., an EIS)

must be prepared for major Federal actions significantly affecting the quality of the human

environment.221

As the Staff stated in its Notice of Intent to Prepare EA and Conduct Scoping, the Staff

does not yet know the significance of potential impacts from the proposed actions and is

preparing an EA to evaluate the proposed actions environmental impacts. 222 If the Staff

determines in its EA that the proposed license amendments would significantly affect the quality

of the human environment, the Staff would be required to prepare an EIS. The mere fact that a

proposed action is a major federal action under NEPA, however, does not on its own

necessitate preparation of an EIS. Indeed, the statutory text of NEPA itself indicates that the

term major federal action may be associated with an EA as well as an EIS. 223 Proposed

Contention is thus inadmissible under C.F.R. §. (f)()(iv), (v), and (vi) because it

addresses matters that are immaterial to the NRC findings necessary to grant the license

amendment requests, lacks factual support, and fails to show that there is a genuine dispute on

a material issue of law or fact.

For all of the reasons stated above, proposed Contention is inadmissible and should

be rejected.

220 Id. at.

221 NEPA § ( )(C), U.S.C. ( )(C) (emphasis added); see also C.F.R. §. (a) (requiring preparation of an EIS where the proposed NRC action is a major Federal action significantly affecting the quality of the human environment).

222 Notice of Intent to Prepare EA and Conduct Scoping, Fed. Reg. at,.

223 See NEPA § (h)( )(B)(iii), U.S.C. § a(h)( )(b)(iii) (providing that for certain congressional reports, agencies are to provide the date on whic h they issued a notice of intent to prepare the environmental assessment or environmental impact statement for the major Federal action).

D. Proposed Contention Is Inadmissible Because It Raises Immaterial and Unsupported Claims

Proposed Contention is stated as follows:

Presently, pursuant to C.F.R. §. (a)( ), the current Palisades operating license no longer authorizes operation of the reactor or emplacement or retention of fuel in the reactor vessel. What Holtec obtained from Entergy when Holtec purchased Palisades, and what Holtec now has, is an operating license conditioned by the certification that nuclear fuel has permanently been removed from the core, and consequently no new fuel may be introduced into the Palisades reactor, nor may it be operated to produce electricity. In order to resume power operations at Palisades, Holtec must obtain a new operating license.224

The proposed contentions Basis argues that [b]oth Holtec and the NRC have admitted that

there is no provision in the AEA or NRC regulations for reversing a permanent shutdown and

restarting a nuclear reactor that has been placed in decommissioning status. 225 The Petitioners

further assert that the Palisades license is subject to a condition prohibiting fuel loading and

operation, and that [w]ithout an unconditioned operating license, Holtec cannot simply amend

what it does not have.226 Finally, Petitioners state that Holtec has not cited to any law or

regulation that would allow the proposed amendment of a terminated license and that [t]here is

no procedure in the NRC rules for reinstating the operating license. 227

Staff Response: Proposed Contention does not meet the contention admissibility

criteria in §. (f)()(iv), (v), or (vi) because it raises immaterial and unsupported claims that

are based on an inaccurate understanding of the current Palisades license and the NRCs

regulatory processes. As discussed above in Discussion Section II.A, existing regulatory

224 Petition at.

225 Id.

226 Id. at -.

227 Id. at. The Basis also repeats the claim from proposed Contention that an EIS is required for restart and references exemption arguments from proposed Contention. Id. at -. Those claims are fully addressed above and will not be further considered here except as necessary to address the arguments of this proposed contention.

processes, including the license amendment process, may be used to restore the authority to

operate the reactor because HDI still holds an oper ating license. The Palisades license is still a

renewed facility operating license, even during decommissioning, because the license

continues in effect after permanent cessation of operation until the license is terminated. 228

While the docketing of the §. (a)() certifications means that reactor operation is no longer

authorized, that is a change in license authority, not a change to the form of the license.

Moreover, several other NRC regulations and the license itself all indicate that the Palisades

license is a renewed facility operating license. 229 Thus, Petitioners claim that NRC rules lack a

procedure for reinstating the operating license is inapposite.

As explained previously, the Palisades license no longer authorizes reactor operation

because () §. (a)( ) currently prohibits reactor operation and ( ) previously approved

amendments removed the authorities and requirements for reactor operation from the license.

However, the exemption process in C.F.R. §. may be used to remove regulatory

restrictions, including the one in §. (a)( ), provided that special circumstances, as required

by C.F.R. §.(a)( ) are present, and the license amendment process may be used to

restore the authorities and requirements for reactor operation that were removed by previous

amendments. The Petitioners neither explain why changes that were made by license

amendment may not be undone by the same process nor explain how doing so would violate

NRC requirements for license amendments.

The Petitioners argue that Holtec and the NRC have admitted that there is no provision

in the AEA or NRC regulations for restart, 230 but Petitioners cite no support for this assertion.

The Staff acknowledges that the AEA and NRC regulations do not specifically address restart of

228 C.F.R. §.(b).

229 See Discussion Section II.A

230 Petition at.

reactors in decommissioning, but the general regulatory provisions for amendment of licenses,

exemptions, and transfers adequately cover the approvals needed for reactor restart, as

explained above in Discussion Section II.A. A nd no provision of the AEA or NRC regulations

specifically prohibit restart. The Petitioners do not address the license amendment provisions,

much less explain why they could not apply, by their terms, and together with the exemption

request, to exit decommissioning and restart a reactor, generally, or to restart Palisades,

specifically. The Staffs detailed technical review is underway and no decisions to approve

restart have been made, but the Staff has identified no legal barrier to HDI requesting to exit

decommissioning and restart operation of Palisades.

The Petitioners claim that Holtec has not cited to any law or regulation that would allow

the proposed amendment of a terminated license is unsupported and incorrect on two counts.

First, the amendment requests cite to the regulations for license amendments. 231 Second, the

Palisades license has not been terminated and is still in effect. In accordance with C.F.R.

§. (a)(), termination of the license would not occur until the completion of dismantlement

in accordance with an approved license termination plan and a final radiation survey showing

that the site and facility meet the decommissioning criteria in C.F.R. Part, Subpart E.

These events have not occurred and would not occur until well into the future even if HDI was

not seeking to restart operation of Palisades.

Finally, Petitioners contend that §. (a)( ) conditions the license to prevent fuel load

and operation and that [w]ithout an unconditioned operating license, Holtec cannot simply

amend what it does not have. 232 However, the exemption process in C.F.R. §. applies

to all the regulations in C.F.R. Part and may, therefore, form the basis for a request to

remove the restriction regarding loading fuel and operation in §. (a)( ), as discussed

231 See, e.g., Primary Amendment Request at, (citing C.F.R. §§.,.,. ).

232 Petition at.

above, and Petitioners proposed Contention that contests the Exemption Request is

inadmissible. To the extent Petitioners may be presenting a general argument that only an

unconditioned operating license may be amended, that argument is incorrect. All NRC-issued

operating licenses have conditions, and NRC regulations provide for the amendment of

licenses.233 By its very nature, the amendment of a license includes adding, removing, or

otherwise modifying conditions of the license. Therefore, this argument also does not support

contention admissibility.

For the reasons discussed above, proposed Contention raises immaterial issues, lacks

adequate support, and does not demonstrate a genuine, material dispute with the application.

Therefore, proposed Contention does not satisfy §. (f)()(iv), (v), or (vi).

E. Proposed Contention Is Inadmissible Because It Raises Immaterial, Unsupported, and Out of Scope Arguments that Impermissibly Challenge NRC Regulations

Proposed Contention is stated as follows:

Holtec and the NRC admit that there is no provision in law or regulation for the NRC to authorize the restart of Palisades as a closed reactor. They are cobbling together a pathway to restart, using a creative procedure based on existing regulations that they believe allows Holtec to bypass the requirement of compiling a new Updated Final Safety Analysis Report (UFSAR) in favor of returning the UFSAR Revision, which was in place when the Palisades reactor was closed. Since there is no dedicated regulatory procedure for restarting a closed reactor, the NRC has no authority to approve the license amendments requested by Holtec. 234

The Petitioners offer four distinct arguments in support of Contention that the Staff will

address as Bases A, B, C, and D. 235 Under Basis A, the Petitioners claim that authorizing the

restart of a reactor in decommissioning is a major question lacking clear Congressional

233 See C.F.R. §§.,.,..

234 Petition at.

235 These four bases correspond to Subsections A through D under the header Facts Upon Which Petitioners Intend to Rely In Support of This Contention. Id. at -.

authority.236 The Petitioners further assert the NRC lacks regulatory authority to grant the

requested amendments because there is no set procedure in the NRC regulations for restarting

a closed reactor.237 In Basis B, the Petitioners argue that HDI cannot use the C.F.R. §.

process to reinstate UFSAR Revision because §. allows only narrow and minimal

changes.238 The Petitioners specifically contend that HDI will need to make changes as a result

of climate change that will exceed the minimum change thresholds of C.F.R.

§. (c)( ).239 For Basis C, the Petitioners criticize HDIs practices in maintaining the steam

generators during decommissioning and argue that HDIs strategy to repair the steam

generators tubes is a major engineered change and may cause additional unforeseen

troubles.240 Under Basis D, the Petitioners claim that there was a [m]ass destruction of quality

assurance (QA) records that will make restoration of operations very difficult or impossible. 241

Staff Response: Proposed Contention, which claims that the NRC has no authority to

approve the license amendments requested by Holtec, 242 is inadmissible because it rests on

immaterial, unsupported, and out-of-scope arguments that do not demonstrate a genuine,

material dispute with HDI. In addition, the f undamental argument of the proposed contention,

that the NRC lacks authority to approve the amendments, impermissibly challenges NRC

regulations. Moreover, three of the four Bases are not related to the proposed contention;

regardless, the assertions therein are immaterial, unsupported, and out of scope. For this

236 Id. at.

237 Id.

238 Id. at.

239 Id. at.

240 Id. at -.

241 Id. at.

242 Petition at.

reason, proposed Contention does not satisfy §. (f)()(ii), (iii), (iv), (v), (vi), and raises

challenges barred by §..

. The Petitioners Basis A Major Questions Doctrine Arguments Are Inadmissible

The Petitioners arguments under Basis A are inadmissible because they are immaterial

and inadequately supported; do not raise a genuine, material dispute with the licensee; and

challenge NRC regulations. 243 To begin, the situation here comes nowhere close to implicating

the major questions doctrine. In West Virginia v. EPA, the Court held that the doctrine applied

where the Federal agency claimed to discover unheralded power representing a

transformative expansion in its regulatory authority in the vague language of an ancillary

provision of a long-extant and rarely used statutory provision that had been designed as

a gap filler.244 Other major questions decisions discu ssed by the Court similarly involved a

major asserted expansion of agency authority based on cryptic or otherwise unclear text. 245 As

the Court stated, Extraordinary grants of regulatory authority are rarely accomplished through

modest words, vague terms, or subtle device[s]. 246 Here, however, the Staff is not asserting

a major expansion of hitherto unclaimed statutory authority. Rather, the Staff is evaluating

amendment and exemption requests from an ex isting licensee under NRC regulations for a

plant already licensed and regulat ed by the NRC to determine whether it is safe to operate

again under a proposed licensing basis similar to what the plant was operated under before.

In addition, the Staff is considering these requests under clear and long-standing license

amendment and exemption authorities. For exampl e, the Staff is applying its long-standing

license amendment regulations, and long-st anding AEA provisions establish the NRCs

243 See C.F.R. §§. (f)()(iv), (v), (vi);..

244 West Virginia v. Environmental Protection Agency, U.S., - ( ) (cleaned up).

245 Id. at -.

246 Id. at (quoting Whitman v. American Trucking Assns., Inc., U.S., ( )) (alteration in original)

authority to issue license amendments. 247 Similarly, the Staff is applying the criteria in its

exemption regulation, §., which attained its current form in a final rule that affirmed

the NRCs statutory authority to issue exemptions. 248 Neither the Staff nor HDI is proposing

novel or unusual interpretations of the NRCs existing statutory authority or employing vague,

ancillary statutory provisions to justify expansions of that statutory authority. Indeed, as

explained above, the restart-related amendment requests largely aim to undo previously-issued

license amendments that removed, at the licensees request, the authority to operate. And the

Exemption Request seeks relief from a regulatory (not statutory) prohibition on operation of a

plant in decommissioning that applies to Palisades only because of a voluntary choice by

Entergy, not due to safety concerns.

The Petitioners contend that the major questions doctrine applies in cases addressing

issues of economic and political significance, 249 but the doctrine is not as expansive as that.

True, the Court referenced economic and political significance, but only in combination with

consideration of the history and the breadth of the authority that [the agency] has asserted, 250

which is illustrated by the discussion above on cases where the agency argued for a major

expansion of statutory authority on thin bases. The Petitioners also cite the decision by the U.S.

Court of Appeals for the Fifth Circuit in Texas v. NRC,251 but that case was wrongly decided

because, like the Petitioners, the court of appeals applied the major questions doctrine based

solely on the economic and political significance of the issue, and not the other relevant factors

247 See C.F.R. §§.,.,. ; AEA §§ b.,, U.S.C. §§ (b),.

248 See Specific Exemptions Rule, Fed. Reg. at, -.

249 Petition at.

250 West Virginia v. EPA, U.S. at (internal quotation marks omitted, alteration in original).

251 Petition at (citing Texas v. Nuclear Regulatory Commission, F. th ( th Cir. ), cert.

granted sub nom. NRC v. Texas, No. -, WL (U.S. Oct., ), and cert. granted sub nom. Interim Storage Partners, LLC v. Texas, No. -, WL (U.S. Oct., )).

cited in West Virginia v. EPA.252 The court of appeals analysis of the issue, amounting to two

paragraphs, does not constitute a persuasive application of West Virginia v. EPA.

Regarding economic and political significance, the Petitioners argue that restart of

Palisades is unprecedented and has national implications for the potential restart of two other

plants.253 However, the requested restart of Palisades involves the use of long-standing

licensing and regulatory processes as discussed above. Also, the economic decision of

Palisades owners to seek restart is not connected to the economic decisions of other owners of

other plants in decommissioning. Further, the Staff fails to see how the requests challenged

hereinvolving potentially reauthorizing operation of an already-built reactor at an existing site

under an existing license with a proposed licensing bas is similar to what the plant previously

operated underhas substantially more economic and political significance than licensing

construction and operation of a new power reactor, which may also involve a new site and a

new licensing basis. Petitioners also contend that restart of Palisades is more significant than

the reinstatement of the terminated construction permit for Bellefonte. 254 Similarly, the Staff does

not understand how the requests challenged here have substantially more economic and

political significance than reinstating a terminated construction permit that authorizes continued

construction of a power reactor (with the ultimate purpose of licensed operation). Thus, if the

challenged restart requests involve an issue of such economic and political significance that

the major questions doctrine applies, then the doctrine would appear to apply to all new

reactor licensing, a result that would undermine the Courts characterization of the doctrine as

one reserved for extraordinary cases. 255

252 Compare Texas v. EPA, F. th at with West Virginia v. EPA, U.S. at -, -.

253 Petition at.

254 Petition at.

255 West Virginia v. EPA, U.S. at.

Further, even if the major questions doctrine applied, it would serve only as a guide for

interpreting statutory language. 256 The Petitioners neglect to even cite the statutory language

they believe is implicated by the restart-related amendment and exemption requests, much less

explain how the NRC is improperly interpreting this language or why it could not be applied to

the licensee requests being challenged here. As explained above, the proposed use of the

amendment and exemption processes are well within the NRCs statutory authority. Therefore,

as explained above, Basis A does not satisfy the contention admissibility criteria in

§. (f)()(iv), (vi).

Moreover, the Petitioners do not argue in Basis A that the standards for license

amendments and exemptions are not satisfied. Instead, the Petitioners appear to be challenging

the license amendment and exemption processes, themselves, arguing that these processes

may not be applied to restart of Palisades. 257 This represents a challenge to the NRCs

regulations, which §. forbids absent a petition for waiver or exception (accompanied by

affidavit) that demonstrates prima facie that special circumstances with respect to the subject

matter of the particular proceeding are such that the application of the rule or regulation (or a

provision of it) would not serve the purposes for which the rule or regulation was adopted. 258

The Petitioners have not cited §., much less submitted a petition for waiver or exception

(with affidavit) that meets the requirements of §..

Finally, the Petitioners other Basis A argum ents are similarly unavailing. For example,

the Petitioners claim that the NRC has no regul atory authority to grant the license amendments

requested by Holtec because there is no set procedure in the NRC regulations for restarting a

256 Id. at -.

257 Petition at -.

258 C.F.R. §. (a)-(c). Whether special circumstances are present is assessed under the Millstone factors. Exelon Generation Co. (Limerick Generating Station, Units & ), CLI--, NRC,

( ) (citing Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units and ),

CLI- -, NRC, ( )).

closed reactor.259 The Petitioners also contend that the decommissioning process set forth in

C.F.R. §. does not indicat[e] or hint that the decommissioning process leading to

license termination can be reversed. 260 While the Petitioners are correct that there is no specific

NRC regulation that addresses exiting decommissioning and restarting a reactor, the

Petitioners arguments do not relate to or support the Basis A assertion that the NRC lacks

statutory authority to grant the amendment and exemption requests. The Petitioners also

overlook the Commissions policy that requests to exit decommissioning and restart a reactor

could be considered under the existing regulatory framework. 261 Also, the Petitioners assertions

here largely mirror arguments in their inadmissible proposed Contention, and the Petitioners

do not explain which criteria in the license amendment or exemption regulations are unsatisfied,

much less provide a supported argument therefor that is sufficient to demonstrate a genuine

dispute with HDI. For example, that §. (a) does not hint that a plant in decommissioning

may restart operation does not establish that an exemption seeking authority to exit

decommissioning and restart operation of the reactor is inappropriate because the exemption

process exists to address matters not contemplated during rulemakings. 262 Therefore, this

aspect of Basis A does not satisfy §. (f)()(iv)-(vi).

The Petitioners also assert that the overall design of the Palisades reactor is not

licensable to st century standards,263 but this claim does not relate to, much less support, the

statutory authorization concerns made in Basis A or the claim made in the proposed contention

259 Petition at.

260 Id. at.

261 PRM Denial, Fed. Reg. at,.

262 See Specific Exemptions Rule, Reg. at, (stating, The Commission believes that it is not possible for its regulations to predict and accommodate every conceivable circumstance).

263 Petition at.

that the NRC has no authority to approve t he license amendments requested by Holtec.264

Even considered independently, the assertion regarding st century standards is not

admissible because the Petitioners do not (a) identify specific portions of the application that are

deficient, (b) show that the issues raised are material to the NRC findings necessary to issue

the amendments, (c) or provide sufficient information to demonstrate a genuine dispute with HDI

on a material issue of law or fact, as required by §. (f)()(iv), (vi). Also, the Petitioners and

their expert offer only conclusory assertions and vague, speculative hypothetical scenarios in

support of the argument,265 which do not support contention admissibility. 266

For the reasons given above, the Petitioners Basis A arguments do not meet

§. (f)()(iv)-(vi) and represent an impermissible attack on NRC regulations contrary to

§..

. The Petitioners Basis B Section. Process Arguments Are Inadmissible

The Petitioners Basis B arguments regarding Holtecs use of the §. process are

inadmissible under §. (f)()(ii), (iii), (iv), (v), and (vi) because they do not constitute a basis

for the contention, are immaterial and outside the scope of the proceeding, rely on unsupported

speculation, and do not demonstrate a genuine, material dispute with HDI. As discussed below,

Basis B is inadmissible because it does not provide support for the proposed contention and

otherwise challenges the use of processes outside the scope of this proceeding rather than the

specific UFSAR content that the restart-related amendment requests rely on. Also, the

Petitioners arguments reflect a misunderstanding of how changes to the UFSAR may be

264 Id. at.

265 Petition at ; Gundersen Declaration at ¶¶ -.

266 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI--, NRC, ( )

(stating, Bare assertions and speculation, even by an expert, are insufficient to trigger a full adjudicatory proceeding) (internal quotation marks omitted); Power Authority of the State of New York (James A.

Fitzpatrick Nuclear Power Plant & Indian Point Nuclear Generating Unit No. ), CLI- -, NRC,

( ) (stating, Unsupported hypothetical theories or projections, even in the form of an affidavit, will not support invocation of the hearing process).

approved via license amendment, and how current regulations ensure that the UFSAR will be

updated to reflect the outcome of approved license amendments. Further, Basis B relies on

unsupported speculation regarding changes that Petitioners believe HDI will need to make in

response to climate change. Finally, to the ex tent that Basis B challenges NRC regulations on

license amendment and change control processes, those challenges are not cognizable in this

proceeding.

To begin, the Petitioners claims regarding the §. process do not appear to relate

to, much less support, the only affirmative claim presented in proposed Contention : Since

there is no dedicated regulatory procedure for restarting a closed reactor, the NRC has no

authority to approve the license amendments requested by Holtec. 267 Therefore, the Basis B

arguments do not support the contention as required by §. (f)()(ii). To the extent the

Petitioners may be challenging the NRCs authority to approve updated FSAR content via

license amendment or challenge §. itself, those challenges are inconsistent with NRC

regulations (e.g., §§.,., and. ) and are therefore prohibited by C.F.R. §..

Regardless, the Petitioners focus on HDIs reference to using the C.F.R. §.

process to update the FSAR is misplaced because it concerns the implementation of processes

outside the scope of the proceeding. The fundamental objective of §. is to determine

whether certain changes to matters described in the FSAR (or tests or experiments not

described in the FSAR) require NRC approval in the form of a license amendment. 268 In other

words, §. is procedural in nature and implemented to determine whether to submit a

license amendment request. Any amendment request would come later, and the process for

evaluating amendment requests is separate from the §. process. Moreover, the Primary

267 Petition at.

268 See C.F.R. §. (c). See also Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant),

LBP--, NRC, ( ) (citing C.F.R. §. (c)()).

Amendment Request describes HDIs plan to implement[] the §. process coincident with

the associated license amendments. 269 Thus, HDIs planned use of the §. process would

occur upon implementation of the amendments if they are approved and, therefore, is not part of

this proceeding on whether the amendments should be approved in the first place. And while

use of the §. process may lead to future license amendment requests, the Commission

has stated, the prospect of a future license amendment does not create a present hearing

opportunity.270 Consequently, the Petitioners challenge to the use of the §. process does

not satisfy §. (f)()(iii), (iv), and (vi) because it is outside the scope of the proceeding and

immaterial to the findings the NRC must make to issue the restart-related amendment requests.

The instant proceeding provides members of the public the opportunity to challenge the

proposed content of the UFSAR for restart, but the Petitioners have not specifically done so. In

accordance with C.F.R. §. (a), the NRCs determination on the amendment requests

will be guided by the considerations which govern the issuance of initial licenses to the

extent applicable and appropriate. Those considerations include the FSAR content

requirements of C.F.R. §. (b) for matters within the scope of the proposed amendments.

In proposed Contention, the Petitioners acknowledge that HDI proposes to update the UFSAR

to reflect Revision, the version in effect prior to the plant entering decommissioning. 271 The

Primary Amendment Request has numerous references to UFSAR Revision throughout,

both as a general matter and as support for specific license changes. 272 The Primary

Amendment Request also includes the ADAMS a ccession number for this revision of the

269 Primary Amendment Request, Enclosure at.

270 Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units & ), CLI--, NRC,

- ( ).

271 Petition at,.

272 See, e.g., Primary Amendment Request, Enclosure at,.

Updated FSAR.273 The other restart-related amendment requests also reference UFSAR

Revision.274 The Petitioners could have specifically explained any purported deficiencies in

the content of UFSAR Revision for restart or in how HDI is using Revision in support of

specific changes to the license, but the Petitioners neglected to do so. In addition, the

Petitioners note that numerous technical specific ation changes are necessary to restart a plant

in decommissioning.275 But the restart-related amendments requests address these changes to

the technical specifications, and the Petitioners have not specifically challenged them. As such,

the Petitioners have not identified the specific portions of the application they dispute and have

not demonstrated a genuine, material dispute with the application as required by C.F.R.

§. (f)()(vi).

Moreover, even though implementation of §. is outside the scope of the

proceeding, the Staff will, in the interests of eliminating confusion, explain how C.F.R.

§§. (c)( ) and.(e) address updates to the FSAR for information in approved license

amendment requests. Taking the latter regulat ion first, licensees are required by §.(e) to

periodically update the FSAR to reflect (among other things) all safety analyses and

evaluations performed by the applicant or licensee in support of approved license

amendments. Additionally, §. (c)( ) addresses updates to the FSAR to reflect changes

made between the periodic updates under §.(e): In implementing this paragraph, the

FSAR (as updated) is considered to include FSAR changes resulting from evaluations

performed pursuant to this section and analyses performed pursuant to §. since submittal

of the last update of the final safety analysis report pursuant to §. of this part. The

analyses performed pursuant to §. are those included or referenced in license

273 Primary Amendment Request, Enclosure at.

274 Administrative Controls Amendment Request, Enclosure at ; Emergency Plan Amendment Request, Enclosure at ; MSLB Amendment Request, Enclosure at,.

275 Petition at.

amendment requests.276 Therefore, if the restart-related amendments are approved, existing

regulations would require the updated FSAR to reflect those licensee analyses and evaluations

submitted in the amendment requests, including the proposed FSAR content described or

referenced therein.277 Further, §. (c) would require the licensee to assess subsequent

changes to the facility and procedures in support of authorized restart against that updated

FSAR to determine whether NRC approval is required. The criteria of §. (c) would require a

license amendment for significant changes, 278 and any amendment request would be subject to

a hearing opportunity.

The Petitioners also cite a Holtec press release regarding replacement of the component

cooling water (CCW) heat exchangers and speculate that the licensee will be required to make

numerous plant changes due to climate change that will require license amendments under

§..279 However, as explained above, the licensees implementation of the §. process

is outside the scope of the proceeding and immateri al to the required NRC findings to issue the

amendments. Also, the Petitioners never identify a purported deficiency in the application

regarding the CCW heat exchangers. Rather, the Petitioners state that the heat exchanger is

276 See C.F.R. §. (application requirements for license amendments); C.F.R. §. (allowing applicants to incorporate by reference information contained in previous applications, statements or reports filed with the Commission).

277 Although existing regulations address updates to the UFSAR pursuant to approved license amendments as a general matter, the issued amendment may also specify that information within the scope of the NRCs approval that is to be included in the UFSAR. See, e.g., Letter from Robert F. Kuntz, NRC, to David P. Rhoades, Constellation Energy Generation, LLC, LaSalle County Station, Units and

- Issuance of Amendment Nos. and Re: Revised Design Bases of Lower Downcomer Braces (EPID L- -LLA- ), Enclosure at (Feb., ) (ML A ) (stating that [i]mplementation of the amendment shall also include revision of the Updated Final Safety Analysis Report as described in the licensees letter dated January, ).

278 See C.F.R. §. (c)( ) (requiring a license amendment for changes that would meet any one of eight criteria, including those that result in more than a minimal increase in the likelihood or consequences of accidents or of malfunctions of SSCs important to safety).

279 Petition at -.

not a safety system or component that must be addressed within a Safety Analysis Report 280

the Staff notes that the CCW heat exchangers are in fact discussed in UFSAR Revision,281

but the Petitioners statement shows they are not attempting to challenge the application content

regarding the CCW heat exchangers. Further, the Petitioners claims regarding potential

changes to the rest of the plant are vague and conclusory in nature and founded in

speculationneither they nor their expert provide a factually supported prediction of how

climate change will specifically affect the area around Palisades and how such changes would

affect how specific components meet the specific design basis parameters and characteristics in

the referenced UFSAR Revision such that a change under §. would need to be

considered. Vague, unsupported speculation, even by an expert, does not support contention

admissibility.282 Finally, even if Petitioners speculation is correcti.e., that the licensee makes

changes in the future that cross the thresholds in §. (c)( )the licensee would be required

to seek a license amendment from the NRC at that time, and the Petitioners would have an

opportunity to challenge that amendment request. Thus, the Petitioners have not demonstrated

a dispute with the licensee on a material issue of law or fact as required by §. (f)()(vi).

For the reasons given above, the Petitioners Basis B arguments regarding Holtecs use

of the §. process are inadmissible under §. (f)()(iii), (iv), (v), and (vi).

. The Petitioners Basis C Steam Generator Arguments Are Inadmissible

In Basis C, the Petitioners criticize the licensees maintenance of the steam generators

during decommissioning and claim that HDIs strategy to repair the steam generators tubes (as

described in a news article) is a major engineered change and may cause additional

280 Petition at.

281 See e.g., UFSAR Revision, at §§... and... (MLA).

282 USEC, CLI- -, NRC at ; Pilgrim, CLI--, NRC at ; Fitzpatrick, CLI- -, NRC at

unforeseen troubles.283 The Petition also suggests that the steam generators ought to be

replaced rather than repaired. 284 However, as discussed below, Basis C does not support the

contention, raises immaterial issues that are outside the scope of the proceeding, does not

contest the information in the application on steam generators, and does not demonstrate a

genuine, material dispute with the licensee. Therefore, Basis C does not satisfy §. (f)()(ii),

(iii), (iv), or (vi) and is, thus, inadmissible.

First, the Petitioners steam generator claims do not relate to or support proposed

Contention, which claims that [s]ince there is no dedicated regulatory procedure for restarting

a closed reactor, the NRC has no authority to approve the license amendments requested by

Holtec.285 Therefore, the Basis C arguments do not support the contention as required by

§. (f)()(ii).

Second, Basis C does not reference or dispute the applications specific content on

steam generators. The Primary Amendment Request has literally hundreds of references to

steam generator or its abbreviation SG. 286 These include discussion of TSs..,.., and

.. on steam generator tube integrity, the steam generator program, and reports of licensee

inspections.287 Further, the UFSAR Revision referenced in the application addresses steam

generator tube plugging in the Chapter accident analysis, which the Petition never

283 Id. at - (italicization removed). See also Gundersen Declaration at ¶¶ -.

284 Petition at.

285 Petition at.

286 See, generally, Primary Amendment Request.

287 Id., Enclosure at,, ; Enclosure, Attach. at..-,..-,. - to. -,. -,. -.

TS.. addresses the integrity of the steam generator tubes (including plugging) as this relates to the primary containment pressure boundary function of the steam generators; TS.. addresses the steam generator program (including provisions for tube integrity criteria, repair criteria, monitoring, and inspection); and TS.. addresses the submission of reports of licensee inspections conducted under TS... Id.

discusses.288 Therefore, contrary to C.F.R. §. (f)()(vi), Basis C does not specifically

identify the portions of the application information on steam generators that Petitioners dispute

and the reasons for each dispute, or demonstrate a genuine, material dispute with the

application.

Third, Basis C never establishes the materiality of the concerns raised therein to this

proceeding. The Petitioners never reference NRC regulatory requirements, much less explain

how applicable regulations remain unsatisfied. They suggest that the steam generators be

replaced but point to no NRC requirement that they must be replaced. They raise concerns with

HDIs repair strategy, but in doing so they take issue with the content of a news article, not the

application.289 They also never explain why NRC regulati ons would make the licensees specific

repair strategy part of this amendment proceeding. The content of the TSs and UFSAR is part of

this proceeding, but the Petitioners do not contest this content. The licensees activities to

comply with the operating reactor TSs and comport with an operating reactor UFSAR are

subject to NRC inspection and oversight outside of the proceeding. Similarly, HDIs past

maintenance of the steam generators is outside this proceeding. Therefore, Basis C does not

demonstrate that it raises material arguments as required by §. (f)()(iv), (vi), and to the

extent it challenges licensee activities outside the amendment process, Basis C also does not

satisfy §. (f)()(iii).

Ultimately, if the restart-related requests are approved, restart would be subject to NRC

requirements in the TSs and the regulations (including the requirements in §. that control

changes to the UFSAR). The licensees compliance with these requirements (including those

related to steam generator tube integrity) would be subject to NRC inspection and oversight.

288 See, e.g., UFSAR Revision, §§.,.,. (MLA).

289 See Petition at (citing Gundersen Declaration at ¶ ); Gundersen Declaration at ¶¶ - (citing the repair strategy as described in a Reuters news article).

Reactor operation would only be permitted to the extent that the licensee meets the

requirements for operation. And the Staff can, and will, take action (including the issuance of

orders, if necessary) to ensure that any restart of operation at Palisades is safe. Finally, if HDIs

repair strategy requires NRC approval in the form of the license amendment, the Petitioners and

their contact would have an opportunity to challenge a new amendment request or a

supplement to an existing amendment request on the matter. 290

As explained above, the Basis C arguments regarding steam generator issues at

Palisades do not support admissibility of proposed Contention because they do not satisfy

§. (f)()(ii), (iii), (iv), and (vi).

. The Petitioners Basis D QA Records Arguments Are Inadmissible

Under Basis D, the Petitioners claim that there was a [m]ass destruction of quality

assurance (QA) records that will make restoration of operations very difficult or impossible. 291

However, Basis D does not support the proposed contention and is itself unsupported,

immaterial, and outside the scope of the proceeding, contrary to §. (f)()(ii)-(vi).

First, the Petitioners QA records claims do not relate to or support proposed Contention

, which asserts that [s]ince there is no dedicated regulatory procedure for restarting a closed

reactor, the NRC has no authority to approve the license amendments requested by Holtec. 292

Therefore, Basis D does not satisfy §. (f)()(ii).

Second, Basis D raises arguments within the scope of the transfer proceeding, not this

proceeding on the amendment requests. As stated in the Amendments Notice, this proceeding

is limited to the four restart-related amendment requests listed therein, while the Restart

290 HDI indicated at an October,, meeting of the Advisory Committee on Reactor Safeguards (ACRS) that it intended to submit a license amendment request on the steam generators, but the NRC has not yet received a submission from the licensee. The transcript for this ACRS meeting has not yet been released.

291 Id. at.

292 Petition at.

Transfer Request was the subject of a separate notice. 293 The QA matters raised in Basis D are

addressed in the Restart Transfer Request, not the amendment requests. Regarding QA

records, the Restart Transfer Request states:

(d) Quality Assurance Program

[Palisades] is currently operating under its Fleet Decommissioning Quality Assurance Program. Coincident with the transfer of operational authority, HDI will reinstate a power operations [Quality Assurance Program Manual (QAPM)]

pursuant to CFR. (a). Upon transfer, OPCO will retain authority and responsibility for the functions necessary to fulfill the quality assurance requirements required by the POTS [i.e., power operations technical specifications] and as specified in the power operations QAPM.

HDI has maintained IT infrastructure and records required to comply with NRC recordkeeping requirements that will appl y upon reinstatement of the POLB [i.e.,

power operations licensing basis]. OPCO will have full access to all such assets and records following transfer of operational authority. 294

Subsequently, HDI supplemented the transfer application to include a proposed QA program

manual for NRC review (QA Program Manual Supplement). 295 [A] proposed contention must be

rejected if it raises issues beyond the scope of the proceeding as established by the

Commission's hearing notice. 296 Thus, if the Petitioners wished to raise QA matters regarding

proposed restart of Palisades, they were required to do so in the transfer proceeding, but they

did not file any such claims. Therefore, Basis D is outside the scope of this proceeding and is

not material to the required NRC findings to issue the amendments, and Basis D consequently

does not satisfy §. (f)()(iii), (iv), or (vi).

293 Amendments Notice, Fed. Reg. at,.

294 Restart Transfer Request, Enclosure at - (emphasis added).

295 Letter from Jean A. Fleming, Holtec International, to NRC Document Control Desk, Supplement to Application for Order Consenting to Transfer of Control of License and Approving Conforming License Amendments, Proposed Power Operations Quality Assurance Program Manual, Revision (May,

) (ML A) (QA Program Manual Supplement).

296 Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Unit ), LBP- -, NRC,

( ) (citing Public Service Co. of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units and ),

ALAB-, NRC, - ()).

Third, even if Basis D were somehow within the scope of this proceeding, the arguments

therein are unsupported, do not contest the application, and do not demonstrate a genuine,

material dispute with the licensee. Based on the Gundersen Declaration, the Petitioners claim a

[m]ass destruction of QA records occurred in,297 but the Gundersen Declaration does not

support the assertion that QA records were, in fact, destroyed. The Gundersen Declaration cites

a partial exemption from the QA record retention requirements, 298 and Petitioners assume that

QA records were actually destroyed on a massive scale. But this is a factually unsupported leap

in logic. And as stated in the Restart Transfer Request, HDI has maintained IT infrastructure

and records required to comply with NRC recordkeeping requirements that will apply upon

reinstatement of the POLB.299 The Petitioners do not address, much less provide a sufficiently

supported dispute contesting, this statement. 300 Therefore, Basis D does not satisfy

§. (f)()(v), (vi).

For the reasons given above, proposed Contention should not be admitted because it

does not satisfy the contention admissibility requirements of §. (f)()(ii)-(vi).

F. Proposed Contention Is Inadmissible Because It Is Moot

Proposed Contention is stated as follows:

There is no purpose and need statement appearing in the document the NRC considers to suffice for Holtecs Environmental Report. Pursuant to C.F.R.

§., an Environmental Report must contain a statement of the purpose for the project.301

297 Petition at (citing Gundersen Declaration).

298 Gundersen Declaration at ¶¶ -.

299 Restart Transfer Request, Enclosure at -.

300 By noting that this HDI statement is uncontroverted does not mean that the Staff is claiming that there has been no destruction of any QA records. As noted in an NRC inspection report, some records associated with simulator scenario based testing were lost, but the licensee addressed the issue by reperforming the affected testing, and simulator fidelity was determined to not be impacted. Letter to Mike Mlynarek, HDI, from April M. Nguyen, NRC, Palisades Nuclear Plant - Plant Reference Simulator Inspection Report /, Enclosure at (Mar., ) (ML A).

301 Petition at - (internal footnote omitted).

The Basis for proposed Contention includes the Petitioners arguments for why a purpose and

need statement is required. 302

Staff Response: Proposed Contention is inadmissible because HDI submitted a

response to a request for additional information (RAI) that moots the contention. Proposed

Contention is framed as a contention of omission, and such contentions become moot when

the applicant supplies the omitted information. 303 On October,, HDI supplied a purpose

and need statement in an RAI response, which serves to supplement the amendment request

and cure the omission.304 Since the asserted omission has been cured, proposed Contention

does not establish a genuine dispute with the licensee on a material issue of law or fact as

required by §. (f)()(vi). Therefore, proposed Contention is inadmissible.305

G. Proposed Contention Is Inadmissible Because It Does Not Demonstrate a Genuine, Material Dispute with the Licensee

Proposed Contention is stated as follows:

There is no presentation of alternatives, nor discussion of the no-action alternative, found in the document the NRC and Holtec claim to suffice as an Environmental Report.306

302 Id. at -.

303 Florida Power & Light Co. (Turkey Point Nuclear Generating Units & ), LBP--, NRC,

( ).

304 Letter from Jean A. Fleming, Holtec International, to NRC Document Control Desk, Response to Requests for Additional Information Regarding the Proposed Reauthorization of Power Operations of Palisades Nuclear Plant under Renewed Facility Operating License Number DPR-, Enclosure (Oct.

, ) (ML A ) (This RAI response became publicly available in ADAMS on October, )

(Environmental RAI Response).

305 The Staff notes that there are other arguments made in the proposed contention with which the Staff disagrees. For example, the Petitioners state without support that the Environmental Report submitted by Holtec is not an environmental report. However, as explained previously, the Environmental Report submitted with the Exemption Request and referenced in three of the four amendment requests falls within the definition of Environmental Report in C.F.R. §.. Also, the Petitioners claim that the Environmental Report is subject to the requirements of §., but as discussed above, this regulation does not apply to the restart-related amendment requests. See §. (a) (referring to environmental reports required by §§.,.,.,.,.,.,., or., where none of the cited regulations apply to reactor license amendments in this context).

306 Petition at.

In the Basis for proposed Contention, the Petitioners argue that the Environmental Report is

required to include a discussion of alternatives, particularly the no-action alternative. 307

Staff Response: Proposed Contention, formulated as a contention of omission, does

not satisfy the contention admissibility requirements in §. (f)()(vi) because it does not

identify a failure of the application to contain information on a relevant matter as required by law

or establish a genuine dispute with the licensee on a material issue of law or fact. The

Petitioners assert that the Environmental Report does not present alternatives or discuss the

no-action alternative, but both of these claims are untrue. The Environmental Report discusses

the no-action alternative in Section. of the report and references a separate HDI document

for the environmental effects associated with this alternative. 308 Thus, the Environmental Report

presents alternatives by discussing the no-action alternative. Consequently, proposed

Contention has no factual basis, does not identify an omission of information required by law,

and does not establish a genuine, material dispute with the licensee. The proposed contention

also does not specify any other alternative that the Environmental Report must address. For the

Petitioners to have satisfied the contention admissi bility requirements for some other alternative,

the Petitioners would have had to specifically identify the missing alternative and supplied

sufficient factual and legal support to establish that this particular alternative must be described

in the Environmental Report. The Petitioners did not do this. Regardless, the Environmental RAI

Response does discuss energy and system alternatives. 309 Therefore, as discussed above,

proposed Contention is inadmissible because it does not satisfy §. (f)()(vi).

H. Proposed Contention Is Admissible, in Part

Proposed Contention is stated as follows:

307 Id. at -.

308 Exemption Request, Enclosure at (Environmental Report).

309 Environmental RAI Response, Enclosure.

The proposed license amendments and supporting documents, including the document that the NRC and Holtec claim to suffice as an Environmental Report, contain no meaningful identification nor discussion of the effects of anthropocene climate change on the functioning and componentry of the plant, nor is there any identification or analysis of the effects that restored plant operations would have on anthropocene climate change, the physical environment and public health. 310

The proposed contentions Basis argues that Holtecs Environmental Report omits the relevant

discussions of climate change, which Petitioner asserts are required by Council on

Environmental Quality (CEQ) regulations and the NRCs NEPA implementing regulations in

C.F.R. Part.311 Petitioners also argue that the Environmental Report must contain a

discussion of ) climate change impacts on the functioning and componentry of the plant (i.e.,

safe operation of the plant and routine operational challenges), ) an analysis of the effects that

restored plant operations would have on anthropocene climate change, (i.e., greenhouse gas

emissions) and ) an analysis of the effects that restored plant operations would have on the

physical environment and public health (i.e., pro posed action impacts considered with climate

change).312

Staff Response: Proposed Contention is admissible, in part. Proposed Contention

states that the Environmental Report does not contain any identification or analysis of the

effects that restored plant operations would have on Anthropocene climate change, the physical

environment and public health. As discussed below, the NRC considers the impacts of the

proposed action as they relate to climate change by considering and analyzing the )

greenhouse gas emissions of the proposed action and ) a description of how the baseline

environment in the environmental review might change as a result of climate change and a

discussion of how proposed action impacts would either increase, decrease, or remain the

same in this new baseline environment. As t he Environmental Report does not contain these

310 Petition at (internal footnote omitted).

311 Petition at -.

312 See Petition at.

climate change discussions, the Staff agrees that proposed Contention is admissible to the

extent that it identifies that the Environment al Report omits these climate change discussions.

However, the portion of the contention that raises operational issues is inadmissible for failing to

meet C.F.R. §. (f)()(iii), (iv) and (vi). Finally, the portion of the contention that raises

safety concerns is inadmissible for failing to meet C.F.R. §. (f)()(iv) and (vi).

The Commission has stated, We expect the Staff to include consideration of carbon

dioxide and other greenhouse gas emissions in its environmental reviews for major licensing

actions.313 Based on this decision, the Staff considers climate change to be within the scope of

the NEPA environmental review for major licensing actions, a term that the Staff concludes

would apply to the restart and resumption of operations at Palisades.

Although the licensees requests for approval of the licensing actions and exemption

required for restart do not constitute an application for a new construction permit or license, the

Staffs guidance for conducting environmental reviews for other major licensing actions is

instructive here. In the Staffs guidance for implementing CLI- - in new reactor

environmental reviews, the Staff determined that the environmental reviews for these major

licensing actions will include ) greenhouse gas emissions of the proposed action and ) a

description of how the baseline environment in the environmental review might change as a

result of climate change and a discussion of how proposed action impacts would either

increase, decrease, or remain the same in this new baseline environment. 314 The NRC

313 Duke Energy Carolinas, LLC (William States Lee III Nuclear Station, Units and ), CLI- -, NRC

, - ( ).

314 See Regulatory Guide., Revision Preparation of Environmental Reports for Nuclear Power Stations Section., at (Sept. ) (MLA ). See also Interim staff guidance; issuance; Environmental Issues Associated with New Reactors, Fed. Reg., (Sept., ).

determined in the and LR GEISs that these same climate change issues are to be

evaluated during license renewal environmental reviews. 315

The Environmental Report HDI submitted in connection with the proposed restart and

resumption of operation of Palisades does not contain these discussions of climate change, as

discussed below.316 While HDI was not required to submit an Environmental Report for the

restart-related amendment requests, 317 HDI voluntarily developed the Environmental Report,

which describes its scope in broad terms:

Holtec Decommissioning International LLC (Holtec) has prepared an environmental review of the proposed resumption of power operations at Palisades Nuclear Plant (PNP) specifically to ( ) provide updated status of the plants permits, licenses, and authorizations, ( ) provide updated information on the Palisades Nuclear Plants (PNP) site and environs, ( ) provide a review of potentially new and significant information since the Nuclear Regulatory Commissions (NRC) findings in its October Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement, Regarding Palisades Nuclear Plant [herein called SEIS] to determine if the SEIS findings remain bounding, and ( ) provide an assessment of Category and environmental issues not addressed in Supplement. (NMC ; NRC

).318

As stated in Discussion Section II.B, above, Holtec referenced the Environmental Report in

three of the four amendment requests. Also, C.F.R. §. (f)( ) and Commission precedent

establish that petitioners are obligated to address environmental information in the application

315 See Generic Environmental Impact Statement for License Renewal of Nuclear Plants, NUREG-,

Rev., Vol., Section.. (June ) (MLA) ( LR GEIS); Generic Environmental Impact Statement for License Renewal of Nuclear Plants, NUREG-, Rev., Vol., Section. (Aug. )

(ML A ) ( LR GEIS).

316 The Environmental Report assessed the Category and environmental issues from the LR GEIS that were not addressed in the License Renewal EIS Supplement. The License Renewal EIS Supplement does not contain the relevant discussions of climate change.

317 See C.F.R. §. (a) (referring to environmental reports required by §§.,.,.,.,

.,.,., or., where none of the cited regulations apply to reactor license amendments in this context). There is no other provision of C.F.R. Part that requires an environmental report in this context.

318 Exemption Request, Enclosure, at (Environmental Report).

even if the applicant was not required to submit it. 319 Given the stated breadth of the

Environmental Report and Commission requirements regarding the filing of contentions thereon,

the Staff concludes that proposed Contention is admissible to the extent it identifies the

omissions of ) a discussion of greenhouse gas emissions of the proposed action and ) a

description of how the baseline environment for the proposed action might change as a result of

climate change and a discussion of how impacts of the proposed action would either increase,

decrease or remain the same in this new baseline environment.

As explained below, the remainder of proposed Contention is inadmissible as it raises

safety and operational issues that are outside the scope of the NEPA environmental review, are

not material to the findings the NRC must make, and do not demonstrate a genuine dispute with

HDI on an issue of material fact or law. Therefore, proposed Contention should be admitted in

a narrowed form, as discussed below.

. The Portions of Proposed Contention that Identify the Omissions of ) a Discussion of Greenhouse Gas Emissions of the Proposed Action and ) a Description of How the Baseline Environment in the Environmental Review Might Change as a Result of Climate Change and a Discussion of How Proposed Action Impacts Would Either Increase, Decrease, or Remain the Same in this New Baseline Environment.

Proposed Contention identifies omissions in the Environmental Report that are within

the scope of the environmental review. The Petitioners assert that the Environmental Report

does not contain any identification or analysis of the effects that restored plant operations

would have on anthropocene climate change, the physical environment and public health. The

Staff agrees, with some exceptions.

319 See C.F.R. §. (f)( ) (stating that contentions must be based on documents or other information available at the time the petition is to be filed, including (as relevant here) the application, environmental report or other supporting document filed by an applicant or licensee); Palisades, CLI- -

, NRC at (explaining that petitioners were obligated to file contentions challenging the statements in the license transfer application regarding the applicability of the proposed categorical exclusion);

C.F.R. Part (which does not require an applicant to address the applicability of categorical exclusions).

As to the first omission, the Environmental Report does not discuss the greenhouse gas

emissions that would be caused by the restart and resumption of operations at Palisades. In

table. - of the Environmental Report, Holtec provided an assessment of Category and

environmental issues from the LR GEIS that were not addressed in the License Renewal

EIS Supplement, but did not include a discussion of greenhouse gas emissions enumerated in

section... of the LR GEIS, which implemented the Commissions direction in CLI- -

.320 Holtec, in response to the Staffs RAI, RAI-MET-, provided the emissions Inventory

Report for Palisades.321 However, this emission data does not represent operational conditions,

as the fuel was permanently removed from the Palisades reactor vessel in.322 Therefore,

the Petitioners have identified that this Environmental Report omits the required discussion of

greenhouse gas emissions from the proposed restart and resumed operation of Palisades.

As to the second omission, the Environmental Report does not contain a description of

how the baseline environment in the environmental review might change as a result of climate

change and a discussion of how proposed action impacts would either increase, decrease, or

remain the same in this new baseline environment. In table. - of the Environmental Report,

Holtec did not include a discussion of climate change impacts enumerated in Sections...

and.. of the LR GEIS, which implemented the Commissions direction in CLI- -.

An omission in an applicants environmental report of the impact on water availability and

aquatic resources in light of reasonably foreseeable climate changes considered together with

320 While this action is not a license renewal, the Environmental Report uses the categories of the LR GEIS to identify any information that may be new and significant. The LR GEIS identified greenhouse gas emissions and climate change as an issue to be analyzed to implement the Commissions direction for major licensing actions in CLI- -.

321 Environmental RAI Response, Enclosure.

322 Palisades. (a)() Certifications, at.

the proposed action has previously been admitted by a Board for a hearing. 323 Therefore, the

Petitioners have identified that this Environmental Report omits the required description of how

the baseline environment in the environmental review might change as a result of climate

change and a discussion of how impacts discussed in the environmental review would either

increase, decrease, or remain the same in this new baseline environment.

The NRC staff notes that this portion of proposed Contention is admissible only as a

contention of omission based on the absence of a discussion of greenhouse gas emissions and

the climate change impacts to the environmental resources that are incrementally affected by

the proposed action, generally. The NRC Staff would like to provide clarification regarding HDIs

replacement of the Component Cooling Water (CCW) heat exchangers. Petitioners expert, Mr.

Gundersen, uses a press release issued by Holtec about the replacement of the heat

exchangers to form his factual basis for spec ific environmental impacts from the proposed

action that climate change will intensify. 324 However, the CCW heat exchangers are a part of the

auxiliary support systems that provide cooling to reactor components, not a part of the primary

steam cycle as understood by Mr. Gundersen. 325 These CCW heat exchangers cool the CCW

loop using service water that is drawn from Lake Michigan and is returned either to the Makeup

323 Exelon Nuclear Texas Holdings, LLC, (Victoria County Station Site), LBP--, NRC, -

().

324 Gundersen Declaration at ¶¶ -, -. (The basis for the claim by Holtec Palisades that a new

[heat exchanger] was needed is undoubtedly questionable. Simply put, the water from Lake Michigan does not cool Holtec Palisades; instead it is cooled by water circulating through two banks of cooling towers. Water from the cooling towers cools the condenser, NOT water from Lake Michigan. However, Holtec Palisades assertion that the increasing lake temperature is the cause for installing a new condenser is false because atmospheric heat transf er from the cooling towers is what cools the condenser.).

325 Environmental RAI Response at Enclosure. See also UFSAR Revision, at §§. and

... (MLA). See also NRC Technical Training Center, Reactor Concepts Manual, Pressurized Water Reactor (PWR) Systems, at - (Sept., ) (ML A ) (showing a simplified figure of a typical PWR CCW system for illustrative purposes only).

Basin or discharged to Lake Michigan via the Mixing Basin. 326 While Holtec has acknowledged

that climate change, in part, was a motivating reason for the installation of the new CCW heat

exchangers to provide operational capacity for the heat exchangers, 327 Holtec has also

explained that the replacement of these CCW heat exchangers provides operational flexibility

unrelated to climate change. 328 Therefore, Mr. Gundersens declaration is premised on a

misunderstanding. Based on this misunderstanding, Mr. Gundersen discusses six purported

environmental impacts, but the CCW heat exchanger replacement is unrelated to these

impacts.329 And Mr. Gundersens discussion of these six purported impacts consists of

unsupported speculation. As a result, Mr. Gundersen offers only speculative assertions without

any factual support. Bare assertions and speculation, even by an expert, are insufficient to

demonstrate an inadequacy in an Environmental Report. 330 Therefore, while proposed

Contention identifies an omission in the Environmental Report as a general matter, the

Petitioners arguments regarding the CCW heat exchangers and specific environmental impacts

are unsupported and do not establish a genuine dispute with the licensee on a material issue of

law or fact, as required by §. (f)()(v), and (vi).

326 Environmental RAI Response, Enclosure. (The [Service Water] System is the open loop system that serves as the ultimate heat sink for [Palisades] and draws water from Lake Michigan and returns water to the Circulating Water System at the Makeup Basin (the source of water to the cooling towers (when in service) or discharge to Lake Michigan via the Mixing Basin (the interface with the surface water environment).)

327 Petition at. (To meet the project rising lake water temperature).

328 Environmental RAI Response at Enclosure (The proposed replacement CCWHXs will be two percent capacity shell and tube horizontal single-pass heat exchangers. The installation of percent capacity heat exchangers will allow the operational flexibility to remove one of them from service by isolating both the CCW (Shell side) and SW (tube side) and allowing maintenance on one heat exchanger at a time.)

329 Gundersen Declaration at ¶¶.-.

330 Entergy Nuclear Generation Company (Pilgrim Nuclear Power Station), CLI--, NRC,

( ).

Also, to the extent that the Petition is challenging Holtecs press release on the CCW

heat exchangers, the staff notes that §. (f)()(vi) requires contentions to challenge the

application and to identify the specific portions of the application that are being challenged. A

challenge to the press release, without more, does not challenge the application and therefore

does not support contention admissibility.

In sum, proposed Contention identifies two omissions on issues material to the findings

the NRC must make to support the action that is involved in this proceeding and satisfies the

admissibility criteria in C.F.R. §. (f)()(i)-(vi) as a contention of omission. However, the

Petitioners arguments regarding the CCW heat exchangers and specific environmental impacts

do not support contention admissibility. Therefore, proposed Contention should be admitted

based on the omission, in general, of a discussion of ) greenhouse gas emissions of the

proposed action and ) a description of how the baseline environment in the environmental

review might change as a result of climate change and a discussion of how proposed action

impacts would either increase, decrease, or remain the same in this new baseline environment.

. The Remainder of Proposed Contention, Which Raises Safety and Operational Issues, Is Not Admissible as it Fails to Meet the Admissibility Criteria of C.F.R. §. (iii), (iv), and (vi).

Proposed Contention, an environmental contention, 331 asserts that the Environmental

Report contain[s] no meaningful identification nor discussion of the effects of anthropocene

climate change on the functioning and componentry of the plant. 332 Petitioners raise

operational and safety concerns due to climate change, such as speculation that the plant may

331 Petitioners have framed this contention as a challenge to the Environmental Report based on NEPA, CEQ regulations, and C.F.R. Part.

332 Petition at. See also Gundersen Declaration at ¶¶,,.

face operational constraints that could cause the plant to derate 333 or may increase the intensity

of an external hazard.334

Petitioners do not provide any legal authority requiring the Environmental Report to

discuss either safety or operational impacts of the environment on the plant and do not point to

any specific portions of the Environmental Report that they dispute, and therefore this portion of

the contention does not satisfy C.F.R. §. (f)()(iv), and (vi). Also, the operational

concerns regarding derating are not within the scope of this proceeding, and therefore this

portion of the contention does not satisfy C.F.R. §. (f)()(iii).

Under NEPA, the environmental review is limited to the plants impact on the

environment, not of the environments impact on the plant. 335 NRC regulations for environmental

assessments similarly focus on [t]he environmental impacts of the proposed action, not

impacts on the proposed action.336 Consistent with this, in the LR GEIS, the NRC stated,

The implications of long-term climate change on plant operations and adjustments or

preparations by licensees to a new or changi ng environment are outside the scope of the NRCs

license renewal environmental review, which documents the potential environmental impacts of

continued reactor operations.337 Also, in an adjudicatory context, the Commission has rejected

333 Petition at,, and. See also Gundersen Declaration at ¶¶,. ([S]o back pressure on the turbine increases, and electric power output is reduced.)

334 Gundersen Declaration at ¶ (For example, ultimate heat sink temperatures, wind forces, snow loads, and rain accumulation are some climate related changes that could adversely affect the safe operation of Holtec Palisades.) (emphasis added).

335 U.S.C. § ( )(C) (NEPA § ( )(C)). See also Baltimore Gas and Elec. Co. v. Natural Resources Defense Council, Inc., U.S. ( ) (NEPA has twin aims. First, it places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action. Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process The role of the courts is simply to ensure that the agency has adequately considered and disclosed the environmental impacts of its actions and that its decision is not arbitrary or capricious.) (emphasis added) (internal quotes and citations omitted).

336 C.F.R. §. (a)()(iii).

337 LR GEIS, Vol, App. A, at A- (ML A ) (emphasis added).

an attempt to bring safety issues within the scope of the environmental review. 338 Therefore, the

Petitioners efforts to raise safety and operational concerns regarding the effects of climate

change on the facility are not material to the NRCs environmental findings and do not satisfy

§. (f)()(iv), and (vi).

Petitioners cite to CEQ regulations and NRC NEPA implementing regulations in

C.F.R. §. as binding authority for proposed Contention,339 but neither of these

regulations require this environmental report to include any discussion of the effects of climate

change on the plant. As an independent regulatory agency, the NRC is not bound by those

portions of the CEQs NEPA regulations that have a substantive impact on the way in which

the Commission performs its regulatory functions. 340 Based on the NRCs status as an

independent regulatory agency, Petitioners citations to non-binding CEQ regulations do not

provide any legal authority that supports the admission of this aspect of the contention. As to

§., the content requirements of §. do not apply to the Environment Report, but,

regardless, §. requires a discussion of the environmental impacts of the proposed action,

not the impact of the environment on the plant. 341

Furthermore, Petitioners have not demonstrated that these safety and operational

concerns, if realized, would have any effect on the environment such that these issues would be

material to the environmental findings the NRC must make to support the action involved in this

338 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units and ), CLI--, NRC

, - ( ) (finding that the environmental review may not serve as a back door to litigate the effectiveness of site emergency plans which, much like a plants ability to withstand natural phenomena, are reviewed and updated throughout the life of an operating plant.)

339 Petition at -.

340 Pacific Gas and Electric Co., (Diablo Canyon Nuclear Power Plant, Units and ) CLI--, NRC

, - () (citing Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions and Related Conforming Amendments, Fed. Reg., (Mar., )

(final rule)). See also C.F.R. §.(a).

341 See C.F.R. §. (b)().

proceeding.342 Even more so, these safety concerns are not within the scope of the NEPA

environmental review, and Petitioners provide no binding legal authority that would allow the

environmental review to operate as a backdoor to litigate safety topics. 343 Therefore, the section

of proposed Contention that raises safety and operational issues is inadmissible for failing to

meet C.F.R. §. (f)()(iv) and (vi).

As for the operational concern that the plants output may be reduced, this issue is not

within the NRCs statutory authority, which is for radiological health and safety and common

defense and security issues. 344 As explained by the Commission, Under NEPA, an agency has

no obligation to gather or consider environmental information if it has no statutory authority to

act on that information.345 As operational impacts related to energy resilience are outside of the

NRCs statutory mandate, these effects are not relevant to the NEPA environmental review.

Therefore, the portion of proposed Contention that raises operational issues is inadmissible

for failing to meet C.F.R. §. (f)()(iii), (iv) and (vi).

Even evaluated as a safety contention, which Petitioners have not pled proposed

Contention as, Petitioners have not provided sufficient information to show that a climate

342 While Petitioners advance that climate change external events could adversely affect the safe operations at Palisades, at no point do Petitioners connect the dots that this could result in an environmental impact. See Florida Power and Light Co., (Turkey Point Nuclear Generating Units and ),

LBP- -, NRC, ( ).

343 Indian Point, NRC at.

344 See e.g., U.S.C. § (a), AEA § a. See also Letter from Chair Hansen, NRC, to Frank Rusco, GAO, Enclosure (Sept., ) (ML A ) (The NRCs review will focus on impacts related to its safety mission and will not address impacts related to energy resilience, such as avoiding more frequent disruptions and other operational issues that are under the control of licensees and outside of the NRCs mandate.) (Enclosure to NRC Response to GAO Report); U.S.C. § o (granting jurisdiction to the Federal Energy Regulatory Commission to set electric reliability standards for owners and operators of bulk-power systems.).

345 Nextera Energy Point Beach, LLC (Point Beach Nuclear Plant, Units and ), CLI- -, NRC,

( ).

related change to an external hazard will adversely affect the safe operation of Palisades, 346 and

Petitioners experts incorporation of the GAO report does not provide any support for

Petitioners assertions.347 The structures, systems, and com ponents important to safety in

nuclear power plants are required to be able to withstand the effects of natural phenomena

without loss of capability to perform their safety functions. 348 Petitioners do not engage with the

design bases of the plant described in UFSAR Revision, which the licensee plans to

reinstate if these proposed actions are approved. Even though climate change could

theoretically result in a change to these analyses, Petitioners do not even attempt to

demonstrate that these analyses may no longer be bounding. 349 Therefore, even as a safety

contention, Petitioners do not provide sufficient information to show that a genuine dispute

exists on a material issue of law or fact. In addition to being inadmissible for failing to meet

C.F.R. §. (f)()(iv) as previously discussed, the climate change safety concerns raised in

proposed Contention are also inadmissible for failing to satisfy C.F.R. §. (f)()(vi).

Based on the foregoing, the Staff agrees that Proposed Contention, may be admitted,

but only as narrowed in the following form:

The Environmental Report submitted by Holtec for the proposed action of restart and resumption of operations at Palisades omits the required discussions of )

greenhouse gas emissions and ) a description of how the baseline environment in the environmental review might change as a result of climate change and a

346 Florida Power and Light Co. (Tukey Point Nuclear Generating Plant, Units and ) CLI--, NRC

, ( ) ([The] Amended Petition offers no evidence that a problem may exist at Turkey Point. The short of the matter is that Contention, even if we were somehow to find it within the scope of our license renewal inquiry (which it is not ), it is so thinly supported and rationalized that it could not possibly justify a full hearing under our contention-pleading rule.)

347 See Letter from Chair Hansen, NRC, to Frank Rusco, GAO (Sept., ) (ML A and ML A ).

348 C.F.R. Part, Appendix A, General Design Criterion. While Palisades was licensed prior to the implementation of the General Design Criteria (GDC) and is not bound by the GDC, the licensees most recent UFSAR discusses how the Palisades design basis meets GDC. See Palisades UFSAR, Revision

, §... (MLA ).

349 Virginia Electric and Power Co., (North Anna Power Station, Units and ) LBP- -, NRC _, _

(July, ) (slip op. at - ).

discussion of how proposed action impacts would either increase, decrease, or remain the same in this new baseline environment.

IV. There is No Merit to the Petitioners Request for a Trial Before an Article III Judge

In the Petition, Petitioners included a request that this matter not be addressed under the

C.F.R. §. procedures by an NRC Atomic Safety and Licensing Board, and requested

instead that Petitioners be assigned a federal judge, authorized under Article III of the U.S.

Constitution, for pretrial and trial activity. 350 On October,, the Secretary of the

Commission referred this petition to the Atomic Safety and Licensing Board Panel (ASLBP) for

disposition.351 In referring this petition to the ASLBP, the Secretary of the Commission noted

that [P]etitioners have presented no authority suggesting that the Commission may assign

incoming hearing petitions to federal judges in Article III courts. 352 The Secretary of the

Commissions referral of the instant Petition for disposition by the ASLBP is consistent with the

Atomic Energy Act, the Hobbs Act, and NRC regulations, as discussed below. In addition, the

Petitioners arguments under the Seventh Amendment of the U.S. Constitution lack merit.

Therefore, this Petition should be heard by this Board in accordance with the Secretarys

referral of this Petition to the ASLBP for disposition.

Pursuant to the Hobbs Act, the court of appeals has exclusive jurisdiction to enjoin, set

aside, suspend (in whole or in part), or to determine the validity of ( ) all final orders of the

[Nuclear Regulatory Commission] made reviewable by Section of Title.353 Petitioners

submitted the Petition in response to the Amendments Notice that was published pursuant to

350 Petition at -.

351 Memorandum from Carrie M. Safford, NRC, to E. Roy Hawkens, NRC, Referral of Petition to Intervene and Request for Hearing from Wallace Taylor on behalf of Beyond Nuclear, Dont Waste Michigan, Michigan Safe Energy Future, Three Mile Island Alert, and Nuclear Energy Information Service (Oct., ) (ML A) (Referral Memorandum).

352 Referral Memorandum.

353 U.S.C. § ( ).

U.S.C. § (a) (AEA § a.).354 Pursuant to the AEA, the Commission is authorized to

establish one or more atomic safety and licensing boards [and] may appoint a panel of

qualified persons from which board members may be selected. 355 The decisions and actions of

the licensing boards are reviewable by the Commission. 356 The Commissions regulations in

C.F.R. Part implement the hearing provision of U.S.C. § (a) and the licensing board

provisions in U.S.C. §.

Petitioners included a demand that this matter must not be addressed under the

C.F.R. §. procedure, and that the Petitioners be assigned a U.S. Constitution, Article III

judge for all pretrial and trial activity and attention. 357 However, because §. and the other

regulations in C.F.R. Part apply on their face, the Petitioners are challenging the NRCs

regulations in C.F.R. Part. Challenges to NRC regulations in NRC adjudications are

prohibited by C.F.R. §. (a), except that participants in adjudicatory proceedings may

request a waiver of the regulation or exception thereto under §. (b) upon a showing of

special circumstances as documented in the petition and accompanying affidavit. But

Petitioners did not include a request for a waiver to challenge the rules and regulations of the

Commission, as required by C.F.R. §., to request that this matter not be addressed

pursuant to C.F.R. Part. Therefore, the Petitioners challenge is procedurally barred by

§. and may be denied on that ground alone.

The Petitioners cite Securities and Exchange Commission v. Jarkesy as support for their

arguments, but this case is not relevant to this proceeding and does not call the structure and

354 See also Petition at - (recognizing that this proceeding is under U.S.C. § (a), AEA § a).

355 U.S.C. § (a), AEA § a.

356 See C.F.R. §§.,..

357 Petition at.

procedure of the AEA or C.F.R. Part into question.358 The Courts holding in Jarkesy

concerned the governments ability to enforce common law claims through in-house

administrative proceedings for common law claims subject to the Seventh Amendments

guarantee of the right to a jury trial. 359 Petitioners advance an out of context quote, in the

concurring opinion of Justice Gorsuch, to support a challenge to Administrative Law Judges

(ALJs) and Administrative Judges across the whole U.S. government. 360 Such a challenge

misses the mark.

The actions being challenged in this proceeding are licensing actions and an exemption

requested by Holtec to authorize restart of operation at Palisades. This administrative

proceeding does not involve an administrative enforcement of a common law claim against an

individual that could conceivably implicate the Seventh Amendment to the U.S. Constitution. 361

The quote advanced by Petitioners is similarly limited in scope to enforcement matters, not

358 Securities and Exchange Commission v. Jarkesy, U.S. __ ( ).

359 Id. at __ (slip op. at ).

360 Id. at __ (slip op. at - ) (Gorsuch and Thomas, JJ., concurring). Justice Gorsuch stated:

In, however, all that changed. With the passage of the Dodd Frank Act, Congress gave the SEC an alternative to court proceedings. Now, the agency could funnel cases like Mr. Jarkesys through its own adjudicatory system. See Stat., -.

That is the route the SEC chose when it filed charges against Mr. Jarkesy.

There is little mystery why. The new law gave the SECs Commissionersthe same officials who authorized the suit against Mr. Jarkesythe power to preside over his case themselves and issue judgment. To be sure, the Commissioners opted, as they often do, to send Mr. Jarkesys case in the first instance to an administrative law judge (ALJ). See CFR §. ( ). But the title judge in this context is not quite what it might seem. Yes, ALJs enjoy some measure of independence as a matter of regulation and statute from the lawyers who pursue charges on behalf of the agency. But they remain servants of the same masterthe very agency tasked with prosecuting individuals like Mr. Jarkesy. This close relationship, as others have long recognized, can make it extremely difficult, if not impossible, for th[e ALJ] to convey the image of being an im-partial fact finder. B. Segal, The Administrative Law Judge, A. B. A. J.,

( ).

Id.

361 Id. at __ (slip op. at - ).

licensing actions.362 Furthermore, both additional cases cited by Petitioners, In re Murchison and

Caperton v. A.T. Massey Coal Co., respectively concern documented cases of judicial bias from

state court judges in a criminal proceeding 363 and in a common law contract claim.364 In these

cases, the individuals Fifth and Fourteenth Amendment rights to not be deprived of life, liberty,

or property without due process of law were violated. 365 Here, there is no threat to Petitioners

right to constitutional due process, because Petitioners are not subject to an enforcement action

that may deprive them of life, liberty, or property without due process of law. Petitioners

voluntarily submitted a petition to inte rvene and requested a hearing on amendment requests

seeking the authorization to restart and resume operations at Palisades.

Nevertheless, Petitioners advance a broad challenge to the independence of all

Administrative Judges who are part of the ASLBP, based on personal experience and anecdotal

evidence from often failing to meet the Commissions contention admissibility criteria, which the

Petitioners themselves acknowledge are strict by design. 366 Petitioners may file a petition for

rulemaking if they believe that the contention admissibility requirements in C.F.R. §.

should be revisited.367

To ensure the independence of ASLBP Administrative Judges, the policy of the

Commission is to voluntarily follow the Office of Personal and Managements requirements for

362 Petition at (quoting Jarkesy, U.S. at ___ ( ) (slip op. at - ) (Gorsuch, J., concurring)

(ALJs enjoy some measure of independence as a matter of regulation and statute from the lawyers who pursue charges on behalf of the agency the very agency tasked with prosecuting individuals like Mr.

Jarkesy.) (emphasis added)).

363 In re Murchison, U.S., - ( ).

364 Caperton v. A.T. Massey Coal Co., U.S., ( ).

365 U.S. at - ; U.S. at -.

366 Petition at,.

367 C.F.R. §..

ALJs in C.F.R. §., which prohibit an Agency from rating an ALJs job performance. 368

Petitioners speculation that ASLBP members are biased is without basis.

For the reasons given above, there is no merit to Petitioners request for a trial before an

Article III judge.

CONCLUSION

As explained above, the Petition should be granted, in part, because two of the

Petitioners, Three Mile Island Alert and Nuclear Energy Information Service, establish standing,

and portions of proposed Contention are admissible. However, Beyond Nuclear, Dont Waste

Michigan, and Michigan Safe Energy Future do not establish standing. Also, the remainder of

the proposed contentions are inadmissible because they raise immaterial, out of scope, and

inadequately supported arguments that do not establish a genuine dispute with the licensee and

in many cases challenge NRC regulations and proc esses. Therefore, the Petition should only be

granted in part. Finally, the Petitioners request for a trial before an Article III judge is without

merit.

Respectfully submitted,

/Signed (electronically) by/

Michael A. Spencer Counsel for NRC Staff Mail Stop: O-A U.S. Nuclear Regulatory Commission Washington, DC -

Telephone: () -

Email: Michael.Spencer@nrc.gov

/Executed in Accord with CFR. (d)/

Anita Ghosh Naber Counsel for NRC Staff Mail Stop: O-A U.S. Nuclear Regulatory Commission Washington, DC -

Telephone: () -

Email: anita.ghoshnaber@nrc.gov

368 Management Directive., Directive Handbook,Section I.D.. (July, ) (ML ).

/Executed in Accord with CFR. (d)/

Peter L. Lom Counsel for NRC Staff Mail Stop: O-A U.S. Nuclear Regulatory Commission Washington, DC -

Telephone: () -

Email: Peter.Lom@nrc.gov

/Executed in Accord with CFR. (d)/

Kevin D. Bernstein Counsel for NRC Staff Mail Stop: O-A U.S. Nuclear Regulatory Commission Washington, DC -

Telephone: () -

Email: Kevin.Bernstein@nrc.gov

Dated November, 2024 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

In the Matter of

HOLTEC DECOMMISSIONING Docket No. - -LA-INTERNATIONAL, LLC, AND HOLTEC PALISADES, LLC

(Palisades Nuclear Plant)

Certificate of Service

Pursuant to C.F.R. §., I hereby certify that the NRC Staff Answer to Intervention

Petition from Beyond Nuclear, Dont Waste Michigan, Michigan Safe Energy Future, Three Mile

Island Alert, and Nuclear Energy Information Service in Palisades Restart Amendments

Proceeding, has been filed through the NRCs E-Filing System this th day of November.

/Signed (electronically) by/

Michael A. Spencer Counsel for NRC Staff Mail Stop: O-A U.S. Nuclear Regulatory Commission Washington, DC -

Telephone: () -

Email: Michael.Spencer@nrc.gov Dated November,