ML25190A557
| ML25190A557 | |
| Person / Time | |
|---|---|
| Site: | 05000614 |
| Issue date: | 07/09/2025 |
| From: | Lighty R, Polonsky A Long Mott Energy, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| RAS 57401, 50-614-CP | |
| Download: ML25190A557 (0) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of:
LONG MOTT ENERGY, LLC (Long Mott Generating Station)
Docket No. 50-614-CP July 9, 2025 LONG MOTT ENERGY, LLCS OPPOSITION TO SAN ANTONIO BAY ESTUARINE WATERKEEPERS REQUEST FOR EXTENSION OF DEADLINE TO FILE REQUEST FOR HEARING OR PETITION TO INTERVENE I.
INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c), Long Mott Energy, LLC (LME) opposes the extension request filed by San Antonio Bay Estuarine Waterkeeper (Waterkeeper) on July 7, 2025 (Request).1 Waterkeeper seeks a sweeping two-month extension of the August 11, 2025 deadline to file a hearing request in this proceeding.2 Such an extension would double the 60-day duration that has long been judged sufficient by the Commission, pursuant to notice and comment rulemaking,3 to prepare a hearing request. And that extension would be on top of the additional several weeks during which the Construction Permit Application (CPA) at issue in this proceeding was publicly available before the codified 60-day submission window started.4 The Request fails to substantiate such an extension.
1 San Antonio Bay Estuarine Waterkeepers Request for Extension of Deadline to File Request for Hearing or Petition for Leave to Intervene (July 7, 2025) (ML25188A218).
2 Long Mott Energy, LLC.; Long Mott Generating Station; Construction Permit Application; Acceptance for docketing, opportunity to request a hearing and petition for leave to intervene; order imposing procedures, 90 Fed.
Reg. 24,428 (June 10, 2025) (Hearing Opportunity Notice).
3 See 10 C.F.R. § 2.309(b)(3)(i) (prescribing a sixty-day window for hearing request submissions from the date of the Federal Register notice announcing an opportunity to request a hearing).
4 Without any extension, as of August 11, 2025, the application will have been publicly available for over 100 days.
Compare Hearing Opportunity Notice (published June 10, 2025) with Letter from E. Stones, LME, to NRC
2 Waterkeeper primarily argues that the extension is justified because (1) the application is lengthy and complex, (2) its lawyer is busy, and (3) one of its consultants has personal and professional commitments. But the Commission has long held that such routine conditions are not unavoidable and extreme circumstances warranting the unusual step of delaying an adjudicatory proceeding. More broadly, recent Executive and Congressional actions underscore the importance of stringent adherence to adjudicatory deadlines. Accordingly, as further detailed below, the U.S.
Nuclear Regulatory Commission (NRC) Secretary should DENY the Request.5 II.
LEGAL STANDARDS FOR ADJUDICATORY EXTENSIONS The NRCs Rules of Practice and Procedure authorize extensions of adjudicatory deadlines only upon demonstration of good cause.6 As the Commission has explainedin a published policy statementgood cause for an adjudicatory extension exists only when warranted by unavoidable and extreme circumstances.7 Absent circumstances that are both unavoidable and extreme, adjudicatory participants are expected to adhere to the time frames specified in the Rules of Practice, and the agency must endeavor to enforce compliance with these schedules.8 The Commission has reiterated that its policy statement explicitly discourages extensions of deadlines absent extreme circumstances, for fear that an accumulation of seemingly benign deadline extensions will in the end substantially delay the outcome of the case.9 Document Control Desk, Submittal of the [LME CPA] for Long Mott Generating Station (Mar. 31, 2025)
(ML25090A057) (CPA) (see ADAMS properties, Date Added, showing a public availability date of April 16, 2025) and Long Mott Energy, LLC.; Long Mott Generating Station; Construction Permit Application; Notice; receipt, 90 Fed. Reg. 18,874 (May 2, 2025).
5 See 10 C.F.R. § 2.346(b) (authorizing the Secretary to rule on motions for extensions of time).
6 10 C.F.R. § 2.307(a).
7 Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 21 (1998) (Policy Statement) (emphasis added).
8 Id. Although the Policy Statement is directed primarily at licensing boards, the Commission itself relies on this standard to strictly enforce adjudicatory deadlines [i]in the interest of efficient case management and prompt resolution of adjudications. See Tenn. Valley Auth. (Bellefonte Nuclear Plant, Units 1 and 2), CLI-10-26, 72 NRC 474, 476 (2010).
9 Hydro Res., Inc. (Albuquerque, NM), CLI-99-1, 49 NRC 1, 3 (1999) (emphasis added).
3 III.
WATERKEEPER HAS NOT IDENTIFIED ANY UNAVOIDABLE AND EXTREME CIRCUMSTANCES Waterkeeper argues that a two-month extension of the hearing request deadline is justified because the CPA is lengthy and references purportedly new technology, because its attorney and a consultant have other personal and professional obligations, and because it has not yet received the Sensitive Unclassified Non-Safeguards Information (SUNSI) that the NRC Staff recently agreed to provide.10 As detailed below, none of these claims demonstrates unavoidable and extreme circumstances warranting the requested extension.
A.
The Unremarkable Length of the CPA Is Not an Unavoidable and Extreme Circumstance Waterkeeper suggests that a two-month extension of time is warranted here because the application consists of thousands of pages.11 However, applications in NRC licensing proceedings routinely consist of many thousands of pages. That circumstance does not justify an extension of time. By way of example, petitioners in the North Anna subsequent license renewal (SLR) proceeding claimed that 60 days is inadequate to prepare a hearing request and sought an extension due to the sheer quantity of the application, which was over 3,000 pages.12 The NRC Secretary, on behalf of the Commission, denied that extension request, finding that such claims failed to establish good cause for an extension.13 So too here.
10 See Letter from R. Rivera, NRC, to M. Perales, Counsel for Waterkeeper, Request for [SUNSI] Regarding [CPA]
Submitted by [LME] (June 30, 2025) (ML25181A772) (granting Waterkeepers SUNSI access request).
11 Request at 2; id., Attach. at 2 ¶ 6.
12 Va. Elec. & Power Co. (North Anna Power Station, Units 1 & 2), Corrected Partially Unopposed Motion by Beyond Nuclear, the Sierra Club, and Alliance for a Progressive Virginia for Extension of Deadline for Filing Hearing Requests at 1-2 (Nov. 23, 2020) (ML20344A291). For comparison, the SLR applications for Surry, Peach Bottom, and Turkey Point had similar page counts. See Surry Power Station, Units 1 & 2 - Submittal of Application for Subsequent Renewed Operating Licenses (ML18291A842) (2,983 pages); Peach Bottom Atomic Power Station, Units 2 & 3 - Application for Subsequent Renewed Operating Licenses (ML18193A689) (2,607 pages); Turkey Point Units 3 & 4 - Submittal of Subsequent License Renewal Application, Rev. 1 (ML18113A132) (3,634 pages).
13 Va. Elec. & Power Co. (North Anna Power Station, Units 1 & 2), Order of the Secretary at 1 (Dec. 9, 2020)
(unpublished) (ML20344A438).
4 B.
HTGR Technology Is Not an Unavoidable and Extreme Circumstance Waterkeeper also argues that an extension is necessary because the CPA seeks approval to construct high-temperature gas-cooled reactors (HTGR), which Waterkeeper characterizes as some of the first of their kind internationally.14 But Waterkeeper overstates the newness of HTGR technology. As explained in the CPA, HTGRs have been designed and operated from the 1960s to the present.15 The CPA summarizes decades of experience with this technology, both within and without the United States, noting that it forms the basis for the current generation of HTGRs.16 To be sure, the Xe-100 design iterates and improves upon prior HTGRs. But, contrary to Waterkeepers suggestion, the fundamental technology (and its publicly-available data) have existed for many decades. Waterkeepers consultant, Dr. Lyman, asserts that more time is needed to conduct [a] substantial review of the voluminous scientific literature on [HTGRs].17 But Waterkeeper offers no explanation of why it could not have completed that review (of information that has long been publicly available) before now. That is a textbook example of an avoidable circumstance. At bottom, Waterkeeper simply has not carried its burden18 to demonstrate that HTGR technology per se constitutes an unavoidable and extreme circumstance.
C.
Neither Voluntary Conference Attendance Nor General Workload Constitute Unavoidable and Extreme Circumstances Next, Waterkeeper claims that the professional commitments of one of its consultants justifies an extension of time.19 Specifically, Dr. Lyman believes that his voluntary international travel and speaking engagement at a conference (starting four days before the deadline, on 14 Request at 2.
15 CPA, Encl. 2a, Part II - Preliminary Safety Analysis Report at 1.1-3.
16 Id. at 1.1-4.
17 Request, Attach. at 2 ¶ 10.c.
18 See 10 C.F.R. § 2.325 (... the proponent of an order [here, Waterkeeper] has the burden of proof....).
19 Request at 3.
5 August 7th) and his work as a full-time employee at another job compel the Commission to delay this adjudicatory proceeding for all other parties.20 However, that claim contradicts Commission precedent. As the Commission has long recognized, the fact that a party may have personal or other obligations... does not relieve that party of its hearing obligations.21 The Commission has explained that requesting a hearing is a voluntary activity and that participating in an adjudicatory proceeding demands a regard for [the NRCs] procedural rules and standards.22 Personal inconvenience that may result from such participation simply is not cognizable as a basis for postponing the licensing proceeding.23 Similarly, Waterkeeper asserts that its lawyer has other professional obligations that justify an extension.24 The cited obligations primarily pertain to other proceedings, including preparation of four pleadings (two of which are due at least a month before the current hearing request deadline) and preparation for and participation in a hearing (which occurs more than a week after the current hearing request deadline).25 Waterkeeper does not address why its lawyerwho works at a law firm with other lawyers who purport to practice in the same areas of law26is the only lawyer at that firm who can work on the hearing request during the 100+ days that the CPA has been available for review.
20 Request, Attach. at 2 ¶ 8.
21 See Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 454 (1981).
22 Susquehanna Nuclear, LLC (Susquehanna Steam Electric Station, Units 1 & 2), CLI-17-4 85 NRC 59, 68 (2017)
(citing USEC Inc. (Am. Centrifuge Plant), CLI-06-10, 63 NRC 451, 456 (2006)).
23 See Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), CLI-01-28, 54 NRC 393, 400 (2001) (although this holding pertains to a motion to suspend a proceeding, the logic applies equally to a lengthy extension request).
24 Request at 3.
25 Id. at 3-4.
26 The website of Perales, Allmon & Ice, P.C. lists a total of six Partners and Of Counsel each of whom, based on their website biographies, focus on environmental law. See Attorneys, https://txenvirolaw.com/about-our-firm/attorneys (last visited July 8, 2025).
6 The Commission has long recognized that multiple simultaneous proceedings place burdens on the parties; nevertheless, the Commission has concluded that it cannot postpone cases for many weeks or months simply because going forward will prove difficult for litigants or their lawyers.27 Thus, the general workload of Waterkeepers lawyer is not a valid basis for an extension here. Waterkeeper also cites its lawyers short travel for an unspecified purpose in mid-July and voluntary participation at a professional conference.28 But, as with Dr. Lymans competing personal obligations, these also provide no justification for delaying the instant proceeding.
To be sure, proximate and inflexible conflicts, such as those imposed by other tribunals (e.g., a hearing in one case that coincides with a major pleading deadline in another case), may provide a basis for brief and narrowly tailored extensions of adjudicatory deadlines.29 But that is not the case here. Waterkeeper identifies only one direct conflict with the August 11, 2025 deadline: Dr. Lymans voluntary conference participation. But, given that the CPA will have been publicly available for more than 100 days at that point,30 he reasonably could be expected to plan around that choice. Viewed holistically, Dr. Lymans brief unavailability for a few days at the end of the 100+ day period of public availability is neither extreme nor unavoidable and provides no basis for Waterkeepers requested extension.
27 Consol. Edison Co. of N.Y. (Indian Point, Units 1 & 2), CLI-01-8, 53 NRC 225, 229-30 (2001) (emphasis added).
28 Request at 3-4.
29 See, e.g., Duke Energy Carolinas (Oconee Nuclear Station, Units 1, 2, & 3), Order of the Secretary at 2 (Feb. 13, 2025) (ML25044A034) (unpublished) (denying request for 2-week extension, but granting 1-week extension, due to proximity of pleading deadlines that were 2 days apart).
30 See supra note 4.
7 D.
The SUNSI Access Order, Which Waterkeeper Does Not Acknowledge, Ensures Adequate Time for Petitioners to Review SUNSI Information Lastly, Waterkeeper claims that an extension is needed to allow adequate time to meaningfully engage with the forthcoming SUNSI that its consultants and counsel may access following the entry of a protective order in this proceeding.31 Waterkeeper appears concerned that a delay in entering the protective order will deprive it of the ability to review such information before the August 11, 2025 deadline. However, Waterkeeper appears unaware that the Order Imposing Procedures for Access To [SUNSI] for Contention Preparation32 in this proceeding already includes a mechanism to ensure adequate review time regardless of when the protective order is entered. Specifically, paragraph F of that order ensures that Waterkeeper will have a minimum of 25 days after receipt of (or access to) that information to file contentions based thereon.33 Waterkeeper does not acknowledge this provision and certainly provides no basis to conclude that it is, in any way, insufficient.34 Accordingly, Waterkeepers SUNSI commentary also fails to identify good cause for an extension.
IV.
ABSENT GENUINELY EXTREME AND UNAVOIDABLE CIRCUMSTANCES, STRICT ADHERENCE TO ADJUDICATORY DEADLINES IS NECESSARY TO COMPLY WITH RECENT GOVERNMENT MANDATES ON LICENSING EFFICIENCY In recent years, the executive and legislative branches have demanded that the NRC complete its licensing proceedings in a more efficient and expedient manner. For example, members of Congress have remarked on the problematic trend in schedule slippage, which results from things such as unnecessary adjudicatory extensions.35 In 2019, Congress enacted the Nuclear 31 Request at 2-3; id., Attach. at 2 ¶ 7.
32 See Hearing Opportunity Notice, 90 Fed. Reg. at 24,430-31.
33 Id.
34 See also Request, Attach. at 2 ¶¶ 7, 10.d (Dr. Lyman acknowledging that he does not yet know the level of effort needed to review the SUNSI, which precludes any informed opinion on the adequacy of the review period).
35 See, e.g., Letter from The Honorable Shelley Moore Capito and The Honorable Pete Ricketts to The Honorable Christopher T. Hanson (Nov. 1, 2023), available at https://subscriber.politicopro.com/eenews/f/eenews/?id=0000018b-8b9a-da71-a98f-abff5d500000.
8 Energy Innovation and Modernization Act (NEIMA) requiring the NRC to develop more efficient and predictable review schedules.36 The ADVANCE Act, passed with bipartisan support and signed into law by President Biden in July 2024, requires the NRC to implement initiatives for more efficient and timely new reactor proceedings.37 And several weeks ago, President Trump issued Executive Order 14300, directing the NRC to [s]treamline the public hearings process and establish an 18-month fixed deadline for issuing a final decision (i.e., including completion of the hearing process) on new reactor construction permit applications.38 Granting the Request would erode the Commissions ability to comply with that order, and would do so based on legally inadequate bases.
V.
CONCLUSION Because Waterkeeper has not identified any circumstances that are both extreme and unavoidable, it has not carried its burden to show good cause for an extension of the hearing request deadline. Accordingly, and consistent with the NRCs guiding principle that [r]egulatory decisions should be made without undue delay,39 the NRC Secretary should DENY the Request.
36 Nuclear Energy Innovation and Modernization Act § 102(c), Pub. L. No. 115-439, 132 Stat. 5565 (2019) (codified at 42 U.S.C. § 2215(c)).
37 E.g., ADVANCE ACT of 2024 § 206(b), Pub. L. No. 118-67, 138 Stat. 1447 (codified at 42 U.S.C. 2133 note).
38 Exec. Order No. 14,300, Ordering the Reform of the Nuclear Regulatory Commission §§ 5.a, 5.j, 90 Fed. Reg.
22,587 (May 23, 2025). See also NEIMA Milestone Schedules of Requested Activities of the Commission, NRC.gov, https://www.nrc.gov/about-nrc/generic-schedules.html (last updated June 24, 2025) (acknowledging that the requirement to issue a final decision on an application, rather than just a final safety evaluation, will require focused efforts to ensure timely completion of adjudicatory hearings).
39 See Values, NRC.GOV, https://www.nrc.gov/about-nrc/values.html (specifically, the Efficiency principle in the NRCs Principles of Good Regulation).
9 Respectfully submitted, Signed (electronically) by Ryan K. Lighty RYAN K. LIGHTY, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 (202) 739-5274 ryan.lighty@morganlewis.com Executed in Accord with 10 C.F.R. § 2.304(d)
ALEX S. POLONSKY, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 (202) 739-5830 alex.polonsky@morganlewis.com Counsel for Long Mott Energy, LLC Dated in Washington, DC this 9th day of July 2025
DB3/ 205118164 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of:
LONG MOTT ENERGY, LLC (Long Mott Generating Station)
Docket No. 50-614-CP July 9, 2025 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, a copy of the foregoing LONG MOTT ENERGY, LLCS OPPOSITION TO SAN ANTONIO BAY ESTUARINE WATERKEEPERS REQUEST FOR EXTENSION OF DEADLINE TO FILE REQUEST FOR HEARING OR PETITION TO INTERVENE was served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned docket.
Signed (electronically) by Ryan K. Lighty RYAN K. LIGHTY, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 (202) 739-5274 ryan.lighty@morganlewis.com Counsel for Long Mott Energy, LLC