ML25249A000

NRC Staffs Answer to San Antonio Bay Estuarine Waterkeeper Petition to Intervene and Request for Hearing

ML25249A000
Person / Time
Site:	05000614
Issue date:	09/05/2025
From:	Julie Ezell, Nicolas Mertz, Stephens S NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 57474, 50-614-CP, ASLBP 25-991-01-CP-BD01
Download: ML25249A000 (0)

Text

September 5, 2025 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of LONG MOTT ENERGY, LLC (Long Mott Generating Station)

Docket No. 50-614-CP NRC STAFFS ANSWER TO SAN ANTONIO BAY ESTUARINE WATERKEEPER PETITION TO INTERVENE AND REQUEST FOR HEARING INTRODUCTION Pursuant to 10 C.F.R. § 2.309(i)(1), the staff (Staff) of the U.S. Nuclear Regulatory Commission (NRC) herein responds to the petition to intervene and request for hearing filed by San Antonio Bay Estuarine Waterkeeper (Waterkeeper or Petitioner) on August 11, 2025.1 In its Petition, Waterkeeper challenges Long Mott Energy, LLCs (LME) Construction Permit (CP)

Application for the proposed Long Mott Generating Station and requests a hearing. Petitioner has established representational standing to intervene and has met the minimum standards for contention admissibility in 10 C.F.R. § 2.309(f)(1) for narrow portions of Contentions 1, 3, and 4.

For the reasons set forth in detail below, the NRC Staff opposes the admission of Contention 2 in its entirety and the remainder of Petitioners Contentions 1, 3, and 4.

1 San Antonio Bay Estuarine Waterkeepers Petition to Intervene and Request for Adjudicatory Hearing (Aug. 11, 2025) (Petition).

BACKGROUND On March 31, 2025, LME submitted an application that proposes to construct four Xe-100 high-temperature gas-cooled reactors in Calhoun County, Texas.2 The CP application includes certain requested exemptions.3 Relevant to the Petition, LME requests (1) an exemption from the financial assurance requirements in 10 C.F.R. § 50.33(f) and Appendix C to 10 C.F.R. part 50 and requests to instead apply the financial assurance requirements in 10 C.F.R. 70.23(a)(5) and (2) a partial exemption from 10 C.F.R. § 50.34(a)(1)(ii)(D) from requirements that LME states are not applicable to non-light water reactor designs or that are not consistent NEI 18-04, Risk-Informed Performance-Based Technology Inclusive Guidance for Non-Light Water Reactor Licensing Basis Development.4 The NRC noticed the receipt and availability of the application in the Federal Register on May 2, 2025.5 The NRC accepted the application for docketing on May 12, 20256 and noticed the docketing decision and opportunity for hearing in the Federal Register on June 10, 2025.7 On August 11, 2025, Waterkeeper timely filed its Petition, along with four member declarations, and two supporting expert determinations. Petitioner proposes the following four contentions opposing the CP Application: (1) the proposed functional containment does not demonstrate compliance with NRC regulations; (2) the LME application does not 2 See Long Mott Energy, LLC, Submittal of Construction Permit Application for Long Mott Generating Station (Mar. 31, 2025) (ADAMS Accession No. ML25090A057 (package)) (LME Application).

3 LME Application, Part V, Non-Applicabilities and Exemptions (ML25090A065).

4 Id. at X-XXII.

5 Long Mott Energy, LLC.; Long Mott Generating Station; Construction Permit Application, 90 Fed. Reg.

18,874 (May 2, 2025). Receipt and availability of the application was noticed in the Federal Register for four consecutive weeks. See id; Long Mott Energy, LLC.; Long Mott Generating Station; Construction Permit Application, 90 Fed. Reg. 19,733 (May 9, 2025); Long Mott Energy, LLC.; Long Mott Generating Station; Construction Permit Application, 90 Fed. Reg. 21,080 (May 16, 2025); Long Mott Energy, LLC.;

Long Mott Generating Station; Construction Permit Application, 90 Fed. Reg. 22,118 (May 23, 2025).

6 See Letter from Adrian Muniz, NRC to Mark Feltner, The Dow Chemical Company (May 12, 2025)

(ML25115A247).

7 Long Mott Energy, LLC.; Long Mott Generating Station; Construction Permit Application, 90 Fed. Reg.

24,428 (June 10, 2025) (providing notice of acceptance for docketing, opportunity to request a hearing and petition for leave to intervene; order imposing procedures).

include beyond-design basis events in the functional containment evaluation; (3) LMEs application does not demonstrate it is financially qualified; and (4) the environmental report minimizes the adverse environmental impacts of the proposed facility. On August 29, 2025, LME submitted a supplement to its application.8 Although LME submitted this supplement after Waterkeepers Petition, as discussed below, this supplement bears on one of the Petitioners proposed contentions.9 DISCUSSION As more fully explained below, Waterkeeper has demonstrated representational standing to intervene in this proceeding and portions of its proposed contentions satisfy the Commissions contention admissibility standards in 10 C.F.R. § 2.309(f)(1). Specifically, Waterkeeper has met the minimum standards for contention admissibility in 10 C.F.R. 2.309(f)(1) for narrow portions of Contentions 1, 3, and 4: (1) the contention of omission in Contention 1 regarding 10 C.F.R. § 50.34(a)(8); (2) the Advanced Reactor Demonstration Program (ARDP) funding description in Contention 2; (3) the contention of omission in Contention 4 regarding data described in Preliminary Safety Analysis Report (PSAR) Table 2.0-1; and (4) the contention of omission in Contention 4 regarding reliance on the Continued Storage Generic Environmental Impact Statement (GEIS). Because the NRC Staffs review of the LME CP Application is ongoing, the NRC Staff takes no position on the merits of these contentions, Petitioners claims, or the Application. The NRC Staff opposes the admission of Contention 2 in its entirety and the remaining portions of Contentions 1, 3, and 4, because, as discussed below, Petitioner has failed to meet the contention admissibility requirements for Contention 2 and the remainder of Contentions 1, 3, and 4.

8 See Letter from Edward Stones, LME, to Document Control Desk, NRC, Supplement #1 to the Environmental Report for the Long Mott Generating Station Construction Permit Application (Aug. 29, 2025) (ML25241A352); Enclosure 1, LMGS ER Supplement #1 (ML25241A353).

9 See infra pp. 36-37.

I.

Standing A.

Applicable Legal Requirements A request for hearing or petition for leave to intervene must demonstrate standing in accordance with 10 C.F.R. § 2.309(d). Under 10 C.F.R. § 2.309(d)(1), the petition must state:

(1) the name, address and telephone number of the requestor or petitioner; (2) the nature of the requestors/petitioners right under the Act to be made a party to the proceeding; (3) the nature and extent of the requestors/petitioners property, financial or other interest in the proceeding; and (4) the possible effect of any decision or order that may be issued in the proceeding on the requestors/petitioners interest.

In evaluating whether a petitioner has established standing, the Commission uses contemporaneous judicial concepts of standing.10 Accordingly, the petitioner must demonstrate a concrete and particularized injury that is fairly traceable to the challenged action and is likely to be redressed by a favorable decision, where the injury is to an interest arguably within the zone of interests protected by the governing statute.11 The petitioner has the burden of proving that standing requirements are met, but the hearing request will be construed in the petitioners favor.12 In some cases, such as construction permit and operating license proceedings for power reactors, the Commission employs a proximity presumption in which the Commission presume[s] that a petitioner has standing to intervene if the petitioner lives within, or otherwise has frequent contacts with, the zone of possible harm from the nuclear reactor.13 An organization may show standing in its own right, based on its organizational purposes (organizational standing), or through representing the interests of its members 10 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 & 4), CLI-15-25, 82 NRC 389, 394 (2015).

11 Calvert Cliffs 3 Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-09-20, 70 NRC 911, 915 (2009) (internal quotation marks omitted).

12 Turkey Point, CLI-15-25, 82 NRC at 394.

13 See, e.g., El Paso Elec. Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI-20-7, 92 NRC 225, 231 (2020).

(representational standing).14 To show organizational standing, the organization must satisfy the same standing requirements as an individual seeking to intervene.15 An organization may represent the interests of its members using representational standing if it can: (1) show that the interests it seeks to protect are germane to its own purpose; (2) identify at least one member who qualifies for standing in his or her own right; (3) show that it is authorized by that member to request a hearing on his or her behalf; and (4) show that neither the claim asserted nor the relief requested requires an individual members participation in the organizations legal action.16 B.

Waterkeeper Has Demonstrated Representational Standing.

Waterkeeper describes its mission as monitor[ing] and protect[ing] the San Antonio, Matagorda, and Lavaca Bays by investigating and reporting violations of environmental permits, participating in the pollution permitting process, coordinating communicating actions and visits, and educating the public on the sources of pollution that impact Calhoun County.17 Waterkeeper states that its members will be harmed if the construction permit is granted and that it seeks to ensure that LMEs Construction Permit Application is not approved unless and until LME demonstrates full compliance with all applicable requirements.18 A declarant residing approximately 4 miles from the facility states concerns about human health and his own health from explosions and radiation, the facility not being designed with safety, climate change, and flooding in mind, and land and water contamination.19 14 See FirstEnergy Nuclear Operating Co. (Beaver Valley Power Station, Units 1 and 2), CLI-20-5, 91 NRC 214, 219-20 (2020).

15 Id. at 219.

16 See, e.g., Consumers Energy Co. (Palisades Nuclear Plant), CLI-07-18, 65 NRC 399, 409 (2007);

Beaver Valley, CLI-20-5, 91 NRC at 220.

17 Petition at 3.

18 Petition at 7-8.

19 Petition, Ex. D, Declaration of John Daniel at ¶¶ 5-6. The Petition contains several documents appended to it labeled exhibits. The Licensing Board directed that all future filings should refer to such appended documents as attachments or enclosures. See Long Mott Energy, LLC (Long Mott Generating Station), Memorandum and Order (Initial Prehearing Order), at 5-6 (Aug. 28, 2025) (unpublished)

Standing based on proximity rests on the presumption that an accident associated with the nuclear facility could adversely affect the health and safety of people working or living offsite but within a certain distance of that facility.20 The Commission recognized in Calvert Cliffs that in construction permit proceedings for power reactors, a petitioner is presumed to have standing to intervene if the petitioner lives within, or otherwise has frequent contacts with, the zone of possible harm from the nuclear reactor.21 The Commission explained that [i]n practice, we have found standing based on this proximity presumption if a petitioner (or a representative of a petitioner organization) resides within approximately 50 miles of the facility in question.22 Petitioner asserts that the 50-mile proximity presumption applies.23 The Commission recognized that the basis of this presumption could be rebutted such as by providing evidence to show that the effects of an accidental release from the proposed [facility] would be limited to a shorter distance from the facility.24 Unlike the current operating fleet on which the 50-mile proximity presumption is based, the proposed facility produces only 800 megawatts (MW) of thermal power (approximately 320 MW of electric power) and the application proposes an emergency planning zone that is at the site boundary.25 Consequently, the 50-mile radius may not be (ML25240B507). The NRC Staff uses Petitioners labeling convention to reference these attachments but recognizes that these documents are not evidentiary exhibits. See id. at 6.

20 Exelon Generation Co., LLC (Peach Bottom Atomic Power Station, Units 2 & 3), CLI-05-26, 62 N.R.C.

577, 580 (2005).

21 Calvert Cliffs, CLI-09-20, 70 NRC at 915.

22 Id. at 915-916.

23 Petition at 7.

24 Id. at 917.

25 See Letter from Edward Stones, Long Mott Energy, LLC to Document Control Desk, NRC, Submittal of the Long Mott Energy, LLC, Construction Permit Application for Long Mott Generating Station, at 2 (Mar.

31, 2025) (ML25090A058); Long Mott Generating Station Construction Permit Application, Part II, Preliminary Safety Analysis Report, at 11.4.2-1 (Mar. 31, 2025) (ML25090A061). As a point of comparison Calvert Cliffs Nuclear Power Plant, Units 1 and 2 each produce 2,737 MW of thermal power. See Calvert Cliffs Nuclear Power Plant, Unit 1, https://www.nrc.gov/info-finder/reactors/calv1.html (last visited Sept. 4, 2025); Calvert Cliffs Nuclear Power Plant, Unit 2, https://www.nrc.gov/info-finder/reactors/calv2.html (last visited Sept. 4, 2025). The NRC Staff notes that, although it mentions LMEs proposed emergency planning zone boundary, the NRC Staff takes no position on the acceptability of that proposed boundary at this time.

appropriate for smaller, advanced reactors like the proposed facility. In any event, one of Waterkeepers members and declarants lives within 4 miles of the proposed facility,26 which is well within the proximity presumption that Licensing Boards have previously applied to license amendment proceedings for operating reactors.27 Given the application of the proximity presumption in license amendment proceedings and the Commissions recognition that the 50-mile presumption is rebuttable, the NRC Staff does not oppose application of the proximity presumption in this case. Consequently, the NRC Staff does not generically address the precise outer bounds of the proximity presumption for smaller advanced reactors. Because the interests Waterkeeper seeks to protect are germane to its own purpose, at least one individual declarant has established standing to intervene in their own right and has authorized Waterkeeper to represent their interests, and neither the claim asserted nor the relief requested requires an individual members participation in the organizations legal action, Waterkeeper has demonstrated representational standing.28 II.

Contention Admissibility In its Petition, Waterkeeper proffers four proposed contentions. It argues (1) that LMEs proposed functional containment fails to demonstrate compliance with applicable regulations; 26 Petition at 7.

27 See, e.g., Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Unit 3), LBP-20-8, 92 NRC 23, 42-45 (2020) (applying proximity presumption to declarants residing within 25 miles of the facility in a license amendment proceeding); Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4), LBP-16-5, 83 NRC 259, 275-76 (2016) (applying proximity presumption to declarants residing within 7 miles of the facility in license amendment proceeding); Southern Nuclear Operating Co.,

(Vogtle Elec. Generating Plant, Units 3 & 4), LBP-16-10, 84 NRC 17, 36 (2016) (applying proximity presumption to declarants residing between 7 and 25 miles of the proposed facility in license amendment proceeding). The proximity presumption has also been applied in nonpower reactor and materials proceedings. See, e.g., Georgia Institute of Tech. (Georgia Tech Research Reactor), CLI-95-12, 42 NRC 111, 117 (1995) (stating that the Board found it neither extravagant nor a stretch of the imagination to presume that some injury which wouldnt have to be very great could occur within 1/2 mile of the research reactor.); Interim Storage Partners (WCS Consolidated Interim Storage Facility), LBP-19-7, 90 NRC 31, 48-49 (2019) (applying a proximity plus standard to a declarant residing within 7 miles of the facility).

28 The NRC Staff notes that it previously determined that Waterkeeper would be likely to establish standing to participate in this proceeding in a letter granting access to SUNSI in the Long Mott Construction Permit Application. See Letter from Richard Rivera, NRC, to Marisa Perales, Perales, Allmon, & Ice, P.C., at 2-3 (June 30, 2025) (ML25181A772).

(2) that LME failed to include beyond-design basis events (BDBEs) in the functional containment evaluation; (3) that LME failed to demonstrate its financial qualifications to build and operate the [Long Mott Generating Station]; and (4) that LMEs Environmental Report erroneously minimizes the adverse environmental impacts of the proposed [facility].29 For the reasons below, Contentions 1, 3, and 4 are each partially admissible, and Contention 2 is inadmissible.

A.

Contention Admissibility Requirements The NRCs requirements for the admissibility of contentions are laid out in 10 C.F.R.

§ 2.309(f). A petition must set forth with particularity the contentions that the petitioner seeks to raise and for each proposed contention, must (1) state the specific legal or factual issue to be raised or controverted; (2) provide a brief explanation for the basis of the contention; (3) demonstrate that the issue raised is within the proceedings scope; (4) demonstrate that the issue raised is material to the findings the NRC must make to support the action involved in the proceeding;30 (5) concisely state the alleged facts or expert opinions that support the petitioners position and on which the petitioner intends to rely at the hearing, including references to the specific sources and documents on which the petitioner intends to rely;31 and (6) provide sufficient information to show that a genuine dispute exists on a material issue of law or fact by referencing specific portions of the application that the petitioner disputes or, if the application is believed to be deficient by identifying those deficiencies and the supporting reasons for that 29 Petition at 12, 23, 26, 44.

30 A dispute at issue is material if its resolution would make a difference in the outcome of the licensing proceeding. Holtec International (Hi-STORE Consolidated Interim Storage Facility), CLI-20-4, 91 NRC 167, 190 (2020) (internal quotations omitted).

31 The petitioner is obliged to present the facts and expert opinions necessary to support its contention.

See USEC Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 457 (2006) (it is the petitioners responsibility to satisfy the basic contention admissibility requirements; boards should not have to search through a petition to uncover arguments and support for a contention, and may not simply infer unarticulated bases of contentions); see also Arizona Public Service Co., et. al. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI-91-12, 34 NRC 149, 155 (1991).

belief.32 A petitioner must fulfill each requirement for a particular contention, or their contention will be rendered inadmissible.33 Further, 10 C.F.R. § 2.309(f)(2) requires that contentions be based on documents or other information available at the time the petition is filed, such as the application, supporting safety analysis report, environmental report or other support document filed by an applicant or licensee, or otherwise available to a petitioner.

The contention admissibility rule is strict by design.34 The rule was crafted to prevent

[s]erious hearing delays and open-ended or ill-defined contentions lacking in specificity or basis and to instead insist upon some reasonably specific factual and legal basis for the contention.35 This is to focus litigation on concrete issues and result in a clearer and more focused record for decision.36 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.37 Although a petitioner does not have to prove its contention at the admissibility stage,38 the contention admissibility standards are meant to afford hearings only to those who proffer at least some minimal factual and legal foundation in support of their contentions.39 The petitioner 32 See 10 C.F.R. § 2.309(f)(1)(i)-(vi).

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

34 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349, 358 (2001). The heightened contention admissibility rules are intended, among other things, to preclude contentions based on little more than speculation. See Oconee, CLI-99-11, 49 NRC at 334-35 (1999). The requirements are intended, among other things, to ensure that a petitioner reviews the application and supporting documents prior to filing contentions; that contentions are supported by at least some facts or expert opinion known to the petitioner at the time of filing; and that there exists a genuine dispute before a contention is admitted for litigation, to avoid the practice of filing contentions that lack any factual support and seeking to flesh them out later through discovery. See Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-91-35, 34 NRC 163, 167-68 (1991).

35 Millstone, CLI-01-24, 54 NRC at 359 (quoting Oconee, CLI-99-11, 49 NRC at 334).

36 Changes to Adjudicatory Process; Final Rule, 69 Fed. Reg. 2182, 2202 (Jan. 14, 2004).

37 Id. at 2202.

38 Private Fuel Storage L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-22, 60 NRC 125, 139 (2004).

39 Oconee, CLI-99-11, 49 NRC at 334.

must provide some support for the contention, either in the form of facts or expert testimony, and failure to do so requires that the contention be rejected.40 Any supporting material provided by the petitioner is subject to scrutiny by the presiding officer,41 who must confirm that the proffered material provides adequate support for the contention.42 The basis requirements are intended to: (1) ensure that the contention raises a matter appropriate for adjudication in a particular proceeding; (2) establish a sufficient foundation for the contention to warrant further inquiry into the assertion; and (3) put other parties sufficiently on notice of the issues to be litigated.43 Finally, 10 C.F.R. § 2.335 prohibits 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.44 And attempts to 40 Palo Verde, CLI-91-12, 34 NRC at 155 (1991); accord, Indian Point, CLI-16-5, 83 NRC at 136 (2016). See Rules of Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, 54 Fed. Reg. at 33,170 (This requirement does not call upon the intervener to make its case at this stage of the proceeding, but rather to indicate what facts or expert opinions, be it one fact or opinion or many, of which it is aware at that point in time [that] provide the basis for its contention.).

41 See Vermont Yankee Nuclear Power Co. (Vermont Yankee Nuclear Power Station), ALAB-919, 30 NRC 29, 48 (1989), vacated in part on other grounds and remanded, CLI-90-4, 31 NRC 333 (1990); see also Tennessee Valley Authority (Bellefonte Nuclear Plant, Units 1 and 2), LBP-10-7, 71 NRC 391, 421 (2010).

42 See Vermont Yankee Nuclear Power Corporation, (Vermont Yankee Nuclear Power Station), ALAB-919, 30 NRC 29, 48 (1989); see also Tennessee Valley Authority (Bellefonte Nuclear Plant, Units 1 and 2),

LBP-10-7, 71 NRC 391, 421 (2010).

43 Oconee, CLI-99-11, 49 NRC at 328; see also Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1974).

44 10 C.F.R. § 2.335(a)-(c). Whether special circumstances are present is assessed under the Millstone factors. Exelon Generation Co. (Limerick Generating Station, Units 1 and 2), CLI-13-7, 78 NRC 199, 205 (2013) (citing Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3),

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

advocate for requirements stricter than those imposed by regulation constitute collateral attacks on the NRCs rules and are therefore inadmissible.45 B.

Contention 1 Identifies an Omission in the Application and is Partially Admissible Petitioner offers six bases in support of Contention 1, through which Petitioner challenges the adequacy of the mechanistic source term (MST) methodology that LME uses to demonstrate the adequacy of its functional containment. Specifically, Petitioner takes issue with the mechanistic source term methodology that LME uses to evaluate its functional containment;46 argues that the inadequate MST methodology results in LME failing to comply with 10 C.F.R. § 50.34(a)(4); and argues that 10 C.F.R. § 50.34(a)(8) is not met because testing that is needed to validate the TRISO-X fueland address the limitations that the NRC Staffs acceptance of XE-100 Topical Report, TRISO-X Pebble Fuel Qualification Methodology, Revision 3 (ML21246A289) (Fuel Qualification Topical Report) was subject towill not be complete before 2033, the latest date for completion of construction cited in the [LME Application].47 Petitioner further asserts that because LMEs MST methodology does not demonstrate the adequacy of its functional containment, LMEs requested partial exemption from 10 C.F.R. § 50.34(a)(1)(ii)(D) fails to meet the requirements of 10 C.F.R. § 50.12, and that without the exemption, LME fails to meet 10 C.F.R. § 50.34(a)(1)(ii)(D).48 Petitioner reasons that because LMEs functional containment will not meet these provisions of 10 C.F.R. § 50.34, LME 45 See NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 315 (2012)

(citations omitted); see also Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1974) (explaining that a contention that seeks to raise an issue that is not proper for adjudication in the proceeding or that does not apply to the facility in question, or seeks to raise an issue that is not concrete or litigable must be rejected).

46 Petition at 17-18.

47 See id. at 19-21. TRISO stands for tri-structural isotropic particle fuel and refers to a type of advanced nuclear fuel designed to withstand extreme temperatures in advanced nuclear reactors. X-energy manufactures its own proprietary version, TRISO-X, to ensure supply and quality control. See X-Energy, TRISO-X Fuel, https://x-energy.com/fuel/triso-x (last visited Sept. 4, 2025).

48 Petition at 21.

must include a conventional, essentially leak-tight containment structure to ensure compliance with 10 C.F.R. § 50.34.49 As discussed further below, Contention 1 is admissible, in part, because Petitioner has identified an omission of information required by 10 C.F.R. § 50.34(a)(8) in LMEs CP Application. However, the remaining portions of Petitioners contention based on 10 C.F.R.

§ 50.34(a)(1)(ii)(D) and (a)(4) are inadmissible, as is the portion of Contention 1 based on 10 C.F.R. § 50.12. Further, Petitioners contention that the applicant fails to meet 10 C.F.R.

§ 50.34 because it does not comply with certain guidance documents is also inadmissible because guidance documents do not create legal requirements.50

i.

Petitioners argument in support of Contention 1 that LME fails to meet 10 C.F.R. § 50.34(a)(8) is admissible In Contention 1, Waterkeeper challenges LMEs use of its mechanistic source term methodology to demonstrate the adequacy of its use of functional containment to limit the release of radionuclides from its proposed high-temperature gas-cooled reactor to the environment by arguing, in part, that testing data and other information required to be included in the LME CP Application is missing. Limiting the release of radioactive materials from the facility is a fundamental safety function for any nuclear reactor.51 Because non-light-water reactor technologies use different fuel forms and coolants and have different operating conditions than light-water reactors, a different approach to fulfilling the safety function of limiting the release of radioactive materials may be possible or may be required.52 Functional 49 Id. at 16.

50 See, e.g., Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), CLI-15-6, 81 NRC 340, 358 (2015) (To be sure, Staff guidance documents do not have the force of law and we are not bound to follow them.); Nextera Energy Seabrook, LLC (Seabrook Station, Unit 1), LBP-20-12, 92 NRC 431, 453 (Nov. 6, 2020) (Indeed, an agency violates the Administrative Procedure Act if it treats a guidance document as binding, either on itself or on the regulated community.).

51 Functional Containment Performance Criteria for Non-Light-Water Reactors, Commission Paper SECY-18-0096, at 2 (Sept. 28, 2018) (ML18115A157).

52 Id.

containment can be described as a barrier or a set of barriers taken together that effectively limit the transmission of radioactive material to the environment.53 Mechanistic source term has been described as the result of an analysis of fission product release based on the amount of cladding damage, fuel damage, and core damage resulting from the specific accident sequences being evaluated.54 [Mechanistic source term] is developed using best-estimate phenomenological models of the transport of the fission products from the fuel through the reactor coolant system, through all holdup volumes and barriers, taking into account mitigation features, and finally, into the environs.55 Waterkeeper specifically argues that LME fails to meet NRC requirements for use of functional containment and mechanistic source term in 10 C.F.R. § 50.34(a)(8) because LMEs Application lacks existing representational fuel data to demonstrate the adequacy of the design.56 Waterkeeper relies on the expert testimony of Dr. Edward Lyman, who cites and references specific portions of the Application and other documents that LME relies on to identify specific omissions and assert that the LMEs mechanistic source term methodology insufficiently analyzes the safety of LMEs functional containment.57 Waterkeeper cites as a deficiency LMEs plan to use the computer code system XSTERM as its principal code to run its MST analyses, despite LME not yet submitting XSTERM to the NRC for review.58 Waterkeepers seven additional asserted deficiencies all relate to claims of insufficient and inadequate data, or data that is not yet available due to testing that has not been done or has an uncertain end 53 Id.

54 Issues Pertaining to the Advanced Reactor (PRISM, MHTGR, and PIUS) and CANDU 3 Designs and their Relationship to Current Regulatory Requirements, Commission Paper SECY-93-092, Enclosure 1 at 6 (April 8, 1993) (ML040210725).

55 Id.

56 Petition at 17-18.

57 Id.; Petition, Ex. E at 2-13.

58 Petition at 17; Petition, Ex. E at 4-5.

date.59 Specifically, Dr. Lyman states that specific assumptions LME uses about fuel performance, a key part of LMEs functional containment, have not been validated.60 Here, Dr.

Lyman notes that LMEs analysis of the extreme case depressurized loss of forced circulation (DLOFC) event results in maximum fuel temperatures approaching 2000°C, but that test data measuring tri-structural isotropic (TRISO) fuel at above 1800°C is sparse and that such data is non-existent for the Xe-100 uranium oxycarbide (UCO) TRISO fuel.61 Because of this lack of data, Dr. Lyman asserts that LMEs assumption of relatively low overall increase in failure fractions for [design basis accidents (DBAs)] involving DLOFCs have considerable uncertainty and that the radiological consequences for the Seismic DBA are significantly underestimated.62 Waterkeeper argues that the absence of required test data is an omission in the Application, and the affidavit from Waterkeepers expert provides facts and an expert opinion as to the significance of that alleged omission. Dr. Lyman opines that manufacturing defect data gathered by sampling industrial-scale, representative fuel is needed to justify the assumptions that LME makes about particle defect rates and notes that such data will not be available until several years after the TRISO-X plant proposed for Oak Ridge, TNthat will ultimately manufacture the fuel for the LME facilitybegins operation. 63 Dr. Lyman notes that this would be also be long after the NRC is scheduled to complete its review of the CP Application.64 Petitioners expert witness also states that LMEs reliance on the Advanced Gas Reactor (AGR) program testing in its Fuel Qualification Topical Report is inadequate and provides insufficient 59 Petition at 17-18; Petition, Ex. E at 5-13.

60 Petition at 17.

61 Id.; Petition, Ex. E at 7-8.

62 Petition at 17-18; Petition, Ex. E at ¶ 23.

63 See Petition at 17 summarizing a portion of Dr. Lymans declaration; Petition, Ex. E at 5-6.

64 Petition, Ex. E at 6.

support for its approach to functional containment because that test program only looked at compacts rather than the pebble fuel forms that the Xe-100 will use, and thus is not sufficiently representative of the fuel that LME plans to use.65 Petitioner then argues that, as a result, LME will only have the required test data once X-energy conducts such testing at Idaho National Lab (INL), as planned, and that tests are unlikely to be completed by 2033, the latest completion date LME cites in the Application, because to do so before then Petitioner asserts would require a far more abbreviated schedule for completing the tests than the AGR program supports.66 Petitioner has identified an omission of information required for an application that utilizes mechanistic source term methodology and functional containment. Under 10 C.F.R.

§ 50.34(a)(8), an applicant for a construction permit is required to identify a schedule of the research and development program showing that [safety questions on structures, systems, or components of the facility that require research and development to confirm the adequacy of their design] will be resolved at or before the latest date stated in the application for completion of the facility. Waterkeeper argues that the TRISO-X fuel that will be used in LMEs proposed reactor is a structure, system, or component that requires research and development to confirm the adequacy of its design and, because representative testing data is currently available, LME will need to rely on testing X-energy plans to conduct at Idaho National Lab to confirm its suitability and the adequacy of its design. As Waterkeeper argues, LME would need to show that the INL testing program will yield results before 2033, which is the latest date stated in the application for completion of construction of the facility, but LME has not done so and, as Waterkeeper asserts, with support, the information provided in the Application omits both the test data and confirmation that the required information has been or can be provided in 65 See id. at 10.

66 Petition at 19-21; Petition, Ex. E at 11-12.

compliance 10 C.F.R. § 50.34(a)(8). Therefore, Petitioner has satisfied all contention admissibility requirements under 10 C.F.R. § 2.309(f)(1)(i)-(vi) for this portion of Contention 1.

ii.

Petitioners arguments that LME fails to meet 10 C.F.R.

§ 50.34(a)(1)(ii)(D), 10 C.F.R. § 50.34(a)(4), and 10 C.F.R. § 50.12 do not support admission of the remainder of Contention 1.

Petitioner asserts that because LMEs MST model is not acceptable for demonstrating the adequacy of the functional containment, LME must include an evaluation and analysis of the postulated fission product release based on a major accident resulting in a substantial meltdown of the core with subsequent release into the containment of appreciable quantities of fission products.67 Petitioner further asserts that granting LMEs exemption here would present an undue risk to public health and safety and contravene the purpose of the PSAR rules.68 Thus, Petitioner argues that LME does not currently meet 10 C.F.R. § 50.34(a)(1)(ii)(D) and also does not meet the standard for an exemption from it.69 This portion of Petitioners contention is inadmissible. First, Petitioner fails to explain the connection between granting the exemption that LME seeks and Petitioners assertion that LMEs MST model is not acceptable. The root of this contention is Petitioners assertion that it is reasonable to assume that appreciable quantities of fission products can be released at temperatures greater than 1800°C due to fuel damage because of the lack of data on the fuel above that temperature, and that a DLOFC event can result in fuel temperatures above 1800°C, the latter of which is included in the LME CP Application.70 However, Petitioner does not clearly explain how LMEs request for a partial exemption to allow it to not include an evaluation and analysis of the postulated fission product release based on a major accident resulting in a 67 Petition at 21 (quoting 10 C.F.R. 50.34(a)(1)(ii)(D)) and n.3 (internal quotations omitted).

68 Petition at 21.

69 Id.

70 Id.

substantial meltdown of the core71 would impact the adequacy of LMEs assessment of the DLOFC event. And Petitioner does not cite to the exemption at all and does not engage with LMEs rationale for the requested exemption. Rather, Petitioner cites to LMEs PSAR to assert that LMEs partial exemption request is based, in part, on the claim that core meltdown is not credible at the temperatures experienced in this non-metallic core.72 Based on Petitioners statement that whether or not the fuel damage constitutes a meltdown, is a distinction without a difference, it is unclear if Petitioner disagrees with LME that a core meltdown is not credible.73 Other than the lone reference to the PSAR, Petitioner fails to include references to specific portions of the application, and includes no references to or discussion of LMEs rationale for the requested exemption.74 Similarly, Petitioner does not explain why granting this exemption would contravene the purpose of the PSAR rules or why the exemption would present an undue risk to public health and safety.75 While the release of an appreciable quantity of fission products could present an undue risk to public health and safety, Petitioner does not explain how granting LMEs exemption could lead to such an event. Thus, Petitioner fails to provide sufficient information to show that a genuine dispute exists with LMEs request for an exemption from 10 C.F.R. § 50.34(a)(1)(ii)(D).76 Further, Petitioner fails to provide references to specific documents and sources that establish the validity of the contention, because it only 71 Id. quoting 10 C.F.R. § 50.34(a)(1)(ii)(D) & n.3.

72 Petition at 21 (quoting LME Application, Part II at 3.2-4).

73 Petition at 21.

74 See 10 C.F.R. § 2.309(f)(vi) stating a petitioner must 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 include references to specific portions of the application (including the applicants 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 petitioners belief. As Petitioner is not making a contention of omission, it was required to include references to specific portions of the application that it disputes and the supporting reasons for each dispute which it failed to do.

75 See Petition at 21.

76 See 10 C.F.R. § 2.309(f)(vi).

cites to one statement made in the LME PSAR, and it is unclear whether or not Petitioner disagrees with that statement.77 Similarly, Petitioners rationale behind the assertion that the exemption will cause undue risk to public health and security and contravene the purpose of the PSAR rules is neither clear, explained, nor supported.78 This portion of Contention 1 fails to meet the requirements of 10 C.F.R. § 2.309(f)(1)(v) and (vi) and is inadmissible.

Petitioner also fails to provide an adequate basis for its arguments that LME does not meet 10 C.F.R. § 50.34(a)(4). In basis 5 of the contention, Waterkeeper quotes the requirements of both 10 C.F.R. § 50.34(a)(4) and (a)(8), followed by a short paragraph asserting that LME does not meet either regulation because the latest date for completion of construction cited in the [LME CPA] is 2033 and that X-Energy is unlikely to be able to conduct the necessary testing and obtain all results by then.79 While this statement provides support for an admissible contention under 10 C.F.R. § 50.34(a)(8), as discussed above, it fails to make the connection as to why this potential delay violates 10 C.F.R. § 50.34(a)(4). Petitioners expert, Dr. Lymans, assertion that 10 C.F.R. § 50.34(a)(4) is not fulfilled because the adequacy of the functional containment has not been demonstrated does little to explain Petitioners view as to why LMEs preliminary analysis and evaluation are insufficient.80 Notably, Petitioner does not mention 10 C.F.R. § 50.34(a)(4) anywhere else in the contention. Although Petitioners expert refers to above discussions as part of the basis for the assertion that the application fails to meet 10 C.F.R. § 50.34(a)(4), the discussions he refers to are not clear and Petitioners assertion that 10 C.F.R. § 50.34(a)(4) is not met is open-ended, ill-defined, and lacking in specificity.81 Thus, the portion of Contention 1 that asserts that LME fails to meet 10 C.F.R. 77 See 10 C.F.R. § 2.309(f)(v).

78 Id.

79 Petition at 20-21.

80 See Petition, Ex. E at ¶¶ 12-13.

81 See Dominion Nuclear Connecticut, Inc, (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349, 359 (2001).

§ 50.34(a)(4) fails to provide sufficient information to show that a genuine dispute exists, does not meet the contention admissibility requirements in 10 C.F.R. § 2.309(f)(1)(vi) and is, therefore, inadmissible.82 Finally, through Contention 1, Petitioner argues that the CP Application is deficient because LME fails to meet guidance documents, but these arguments are unavailing because guidance documents are not requirements.83 Only statutes, regulations, orders, and license conditions can impose requirements upon applicants and licensees.84 Although NRC guidance documents are not legally binding, and compliance with them is not required, they describe an approach to compliance with [NRC] rules that is acceptable to the NRC.85 But nonconformance with [guidance] does not equate to noncompliance with the regulations.86 Petitioner asserts that LME fail[s] to satisfy the minimum criteria of adequacy [in DANU-ISG-2022-1] and does not comply with DANU-ISG-2022-01.87 This cited document provides guidance to facilitate the preparation of non-light water reactor applications and guidance to NRC staff on how to review such an application.88 LME is neither required nor purports to meet this guidance.89 Further, Waterkeeper asserts that LME is required to demonstrate the 82 See 10 C.F.R. § 2.309(f)(vi).

83 See, e.g., Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), CLI-15-6, 81 NRC 340, 358 (2015) (To be sure, Staff guidance documents do not have the force of law and we are not bound to follow them.); Int'l Uranium (USA) Corp., CLI-00-1, 51 NRC 9, 19 (2000) (stating guidance does not have the force of regulation and does not impose any additional legal requirements upon licensees. Licensees remain free to use other means to accomplish the same regulatory objectives.); Nextera Energy Seabrook, LLC (Seabrook Station, Unit 1), LBP-20-12, 92 NRC 431, 453 (2020) (Indeed, an agency violates the Administrative Procedure Act if it treats a guidance document as binding, either on itself or on the regulated community.).

84 Curators of the University of Missouri, CLI-95-1, 41 NRC 71, 98 (1995).

85 Areva Enrichment Servs., LLC (Eagle Rock Enrichment Facility), CLI-11-4, 74 NRC 1, 8 n.35 (2011).

86 See University of Missouri, CLI-95-1, 41 NRC at 98.

87 See Petition at 17-18.

88 Interim Staff Guidance, DANU-ISG-2022-01, Review of Risk Informed, Technology-Inclusive Advanced Reactor ApplicationsRoadmap, 1 (Mar. 2024) (ML23297A158) (DANU-ISG-2022-01).

89 See id. at 1 n.1 (stating, [t]he guidance in this ISG that pertains to applicants is not NRC regulations and compliance with it is not required.); see generally LME Application, Part II at 2.0-1, 11.0-1 (describing aspects of the development of the application that considered the ISG).

required fuel performance capabilities with a high degree of certainty, citing language from Regulatory Guide 1.232.90 Similarly, LME is not required to follow Regulatory Guide 1.232, which includes the disclaimer that [r]egulatory guides are not substitutes for regulations and compliance with them is not required.91 While LME does use portions of Regulatory Guide 1.232, and even commits to capturing the intent of all MHTGR-DC in its principal design criteria, it neither holds itself out to meet MHTGR-DC 16 in its totality, nor to meet the standard that Petitioner attempts to hold it to.92 Consequently, to the extent Petitioner intended to raise a contention about LMEs failure to meet 10 C.F.R. § 50.34 due to non-compliance with these guidance documents, such arguments do not support the admission of Contention 1 because they raise issues that are outside the scope of the proceeding and not material to the findings the NRC must make to make a decision on the issuance of the construction permit, as required by 10 C.F.R. § 2.309(f)(1)(iii)-(iv), and are inadmissible.

While NRC Staff takes no position on the merits of this contention at this stage, Petitioner proffers an admissible contention challenging whether LME has met the requirements of 10 C.F.R. §50.34(a)(8) based on Petitioners assertion that LME omitted testing information necessary to demonstrate the adequacy of LMEs functional containment.

C.

Contention 2 is Inadmissible Contention 2 states that LMEs CP Application does not comply with 10 C.F.R. § 50.34 and [modular high-temperature gas-cooled reactors design criteria] MHTGR-DC 16 because it does not include beyond-design basis events (BDBEs) in the spectrum of accidents considered 90 See Petition at 15 (citing Guidance for Developing Principal Design Criteria for Non-Light-Water Reactors, Regulatory Guide 1.232, Rev. 0, at C-8 (Apr. 2018) (ML17325A611)) (RG 1.232).

91 RG 1.232, at 3.

92 LME Application, Part II at 5.3-1. See id. at 5.1-1 stating that each of the design criteria contained in Regulatory Guide 1.232 were reviewed for applicability to the design and were adopted, adapted, or determined to not apply. This indicates that LME did not intend to strictly adhere to Regulatory Guide 1.232, or its MHTGR-DC in Appendix C. Further, LME does not mention the quoted high degree of certainty standard anywhere in its PSAR.

in the functional containment evaluation.93 To support this proposed contention, Petitioner cites to 10 C.F.R. § 50.155(b)(1)(i).94 Petitioner also cites to SRM-SECY-10-01221 and NUREG 0800, Chapter 19.0 as evidence that the NRC has established a defense-in-depth role for new reactors containment.95 Petitioners arguments do not support admission of Contention 2 against LMEs CP Application because the requirements for a construction permit differ from those for an operating license and guidance documents are not requirements. Specifically, Petitioner fails to point to any specific section of 10 C.F.R. § 50.34, or any other regulation or law that requires consideration of beyond design basis events as part of the containment at in the construction permit application. In fact, 10 C.F.R. § 50.34(i) specifically provides that mitigation of beyond design basis events, including compliance with 10 C.F.R. § 50.155, must be addressed by each application for a power reactor operating license.96 Similarly, 10 C.F.R. § 50.155(b)(1)(i) is only applicable at the operating license stage.97 Consistent with this, LME states in Section 3.13 of its PSAR that it is not required to provide information on [mitigation of specific beyond design basis events reflected in 10 C.F.R. § 50.155(a)], and that [c]ompliance with 10 C.F.R. § 50.155 (b) through (d) will be provided with the [operating license application].98 As this is a construction permit application and not an application for an operating license, LME had no obligation to meet the regulatory requirements in 10 C.F.R. § 50.34(i) or 10 C.F.R. § 50.155 as part of its construction permit application. Petitioners reliance on modular high-temperature 93 Petition at 23. As Waterkeeper discusses in its petition, MHTGR-16 refers to Advanced Reactor Design Criterion 16 of RG 1.232 as modified for [modular high-temperature gas-cooled reactors]. Petition at 14.

94 See id. at 24.

95 See Petition at 23-24.

96 See Mitigation of Beyond-Design-Basis Events, 84 Fed. Reg. 39,684, 39,699 (Aug. 9, 2019) (stating

[t]he final rule applies, in whole or in part, to applicants for and holders of an operating license for a nuclear power reactor under 10 C.F.R. part 50.).

97 Id. at 39,708 (noting that an applicant for an operating license is not required to comply with 10 C.F.R. § 50.155 until issuance of the operating license.).

98 LME Application, Part II at 3.13-1.

gas-cooled reactors design criterion 16 of Regulatory Guide 1.232 does not provide support for their argument because this design criterion does not reference beyond-design basis events, and RG 1.232 does not address beyond design basis events other than to state that they are not separately contemplated by the Regulatory Guide. In so far as Petitioner is advocating for a stricter requirement of mandating compliance with 10 C.F.R. § 50.155(b)(1)(i) at the construction permit stage, this would be a collateral attack on an NRC rule and therefore inadmissible.99 Additionally, while LME does not purport to comply fully with 10 C.F.R. § 50.155(b)(1)(i) at this stage of its project, it does consider beyond-design basis events as part of its evaluation of its preliminary design. Section 3.2 of LMEs PSAR, Licensing Basis Event Summary and Evaluation Methodology, identifies LBEs in accordance with NEI 18-04, as endorsed in [RG]

1.233.100 Section 3.2.2 of the PSAR, Summary Evaluation of AOOs, DBEs, and BDBEs includes Table 3.2-2, which provides summaries of the frequencies and consequences of each AOO [anticipated operational occurrence], DBE [design basis event], and [beyond-design basis event].101 Table 3.2-2 incudes well over 100 beyond-design basis events.102 Petitioner does not include any discussion as to why this analysis of beyond-design basis events is insufficient for LMEs CP Application.

For the reasons described above, in Contention 2, Petitioner raises issues that are not within the scope of this proceeding or material to the findings the NRC must make to reach a decision on the construction permit application, and Petitioners do not provide sufficient information to show that a genuine dispute exists with the applicant on 99 The appropriate avenue to request changes to the NRCs regulations is through a petition for rulemaking. See 10 C.F.R. § 2.802. Challenges to regulations are not permitted in individual licensing actions without prior approval by the Commission. See 10 C.F.R. § 2.335.

100 LME Application, Part II at 3.2-1.

101 See id. at 3.2-2, 3.2-5-3.2-61.

102 See id. at 3.2-5-3.2-61.

a material issue of law or fact.103 Petitioner also fails to provide sufficient information to show that a genuine dispute exists with LME on a material issue of law or fact regarding the construction permit, and, by appearing to argue for stricter regulations, also appears to challenge NRC regulations pertaining to construction permits without first seeking and obtaining a waiver from the Commission to do so.104 Thus, in addition to challenging NRC regulations in violation of 10 C.F.R. § 2.335, Petitioner fails to meet the requirements of 10 C.F.R. § 2.309(f)(1)(iii), (iv), and (vi) and Contention 2 is, therefore, inadmissible.

D.

Contention 3 is Partially Admissible Contention 3 states that LME did not demonstrate its financial qualifications to build and operate the facility.105 Here, Petitioner argues that (1) LME does not demonstrate compliance with regulations from which it requested an exemption; (2) neither LME nor its parent company have experience constructing nuclear plants; (3) the exemption request does not meet an extraordinary circumstance standard that is inapplicable here; and (4) the representation of ARDP funding in the application is incorrect. For the reasons described below, portions 1, 2, and 3 of Contention 3 are inadmissible and portion 4 of Contention 3 is admissible.

The [Atomic Energy] Act gives the NRC complete discretion to decide what financial qualifications are appropriate.106 As an initial matter, at the construction permit application 103 10 C.F.R. § 2.309(f)(iii) - (f)(iv).

104 10 C.F.R. § 2.309(f)(vi), stating the quoted portion above, as well as the requirement that the information must include references to specific portions of the application that the petitioner disputes

. While Waterkeeper is asserting that LME failed to include BDBEs in the functional containment evaluation, Waterkeeper fails to describe why the information in Table 3.2-2 is not sufficient. 10 C.F.R.

§ 2.335 prohibits challenges to the requirements for licensing a reactor facility without approval by the Commission.

105 Petition at 26 (emphasis added).

106 New England Coalition on Nuclear Pollution v. NRC, 582 F.2d 87, 93 (1st Cir. 1978). The D.C. Circuit Court of Appeals later affirmed this view. See Coal. for the Envt, St. Louis Region v. NRC, 795 F.2d 168, 174 (D.C. Cir. 1986) (We therefore conclude, in agreement with the United States Court of Appeals for the First Circuit, that [t]he Act gives the NRC complete discretion to decide what financial qualifications are appropriate. New England Coalition on Nuclear Pollution v. NRC, 582 F.2d 87, 93 (1st Cir.1978).).

phase, an applicant is only required to demonstrate financial qualification for the activities for which the permit is sought.107 A construction permit does not authorize operation of the facility.

Consequently, LME is not required to demonstrate its financial qualifications to operate the facility as part of its construction permit application.

i.

Petitioners arguments that LME does not comply with regulations from which LME seeks an exemption are unavailing.

Petitioner asserts in Contention 3 that the Applicant does not meet 10 C.F.R. § 50.33(f) and Appendix C to 10 C.F.R. part 50 (Appendix C).108 Petitioner notes that these regulations impose additional requirements on newly-formed entities to provide more detailed information about the applicants legal and financial relationships with its stockholders, corporate affiliates or others (such as financial institutions) upon which the applicant is relying for financial assistance.109 Petitioner states that, as LMEs parent, [the Dow Chemical Company (Dow)] is required under Appendix C to supply the same kind and scope of information as if it were the applicant itself.110 Petitioner notes that the application states that [a]n intercompany agreement is in place ensuring [Dow] will provide financial support to LME for construction of [the facility].111 Petitioner states that [o]rdinarily under 10 C.F.R. Part 50 Appendix C, it will be necessary that copies of agreements or contracts among the companies be submitted and states that the application did not include such agreements.112 Relying on Appendix C, Petitioner states the information in the application is insufficient because it does not specify the 107 LME requested an exemption to apply the standard in 10 C.F.R. § 70.23(a)(5), which requires that the applicant appears to be financially qualified to engage in the proposed activities. Under 10 C.F.R.

§ 50.33(f)(1), the applicant shall submit information that demonstrates that the applicant possesses or has reasonable assurance of obtaining the funds necessary to cover estimated construction costs and related fuel cycle costs.

108 See Petition at 26-29, 33.

109 Petition at 28 (quoting 10 C.F.R. part 50, app. C.II.A.2).

110 Petition at 29.

111 LME Application, Part I, General and Financial Information, app. A at IX (ML25090A059); Petition at

29.

112 Petition at 29-30.

amount of funding that [LME] will obtain from [Dow].113 But as Petitioner recognizes, LME does not purport to comply with 10 C.F.R. § 50.33(f) and Appendix C and instead requests an exemption from those regulations.114 The NRC Staffs review of the construction permit application and the requested exemption is ongoing and the Staff will determine in the course of its review whether LME has demonstrated compliance with all applicable regulations in its application and met the requirements for an exemption from 10 C.F.R. § 50.33(f) and Appendix C. If LMEs requested exemption is approved under 10 C.F.R. § 50.12, LME would not be required to demonstrate compliance with 10 C.F.R. § 50.33(f) and Appendix C in its construction permit application.

Consequently, these portions of Contention 3 do not demonstrate a genuine dispute with the application within the scope of the proceeding that is material to a finding the NRC must make, as required by 10 C.F.R. § 2.309(f)(1)(iii), (iv), and (vi). Thus, this portion of Contention 3 does not support admission of Contention 3.

ii.

LME is Not Required to Have Experience Constructing a Nuclear Power Plant to Demonstrate That it is Financially Qualified.

Petitioner asserts that the LME Financial Capacity Plan is insufficient because it includes only two statements of direct relevance to the application, which Petitioner asserts is not enough to show LME is financially qualified to construct a nuclear facility.115 Petitioner further states that the remainder of the statements in the Financial Capacity Plan are about LMEs parent company, Dow, which Petitioner states also has no evidenced experience constructing a nuclear facility, much less a first-of-its-kind reactor.116 Under 10 C.F.R.

§ 70.23(a)(5), the standard LME requests to apply in its exemption request, there is no 113 Petition at 29.

114 Petition at 26, 34-41. The NRC Staffs review of the application, including the exemption request, are ongoing and the NRC Staff takes no position on the acceptability of the exemption request at this time.

115 Petition at 28.

116 Petition at 28; see also id. at 42.

requirement to demonstrate experience constructing a nuclear facility. Moreover, the Financial Capacity Plan includes a description of Dows experience with large construction projects and notes that Dow includes organizations for global treasury, finance and project execution, which it states are available to LME for the LME project, but Waterkeeper does not dispute this information.117 The Financial Capacity Plan also states that [a]n intercompany agreement is in place ensuring [Dow] TDCC will provide financial support to LME for construction of [the facility].118 Similarly, Waterkeeper does not dispute this portion of the application, other than to argue, generally, that the information in the application does not demonstrate experience with constructing a nuclear reactor facility. Waterkeeper does not demonstrate a genuine dispute with the applicant on a material issue of law or fact, and raises issue that are not within the scope of the proceeding or material to a finding the NRC must make. As such, because Waterkeeper fails to meet the requirements of 10 C.F.R. § 2.309(f)(1)(iii), (iv), and (vi), this portion of Contention 3 does not support admission of Contention 3.

iii.

The standard of extraordinary circumstances to grant exemptions is inapplicable.

Petitioner challenges LMEs exemption request from 10 C.F.R. § 50.33(f) and Appendix C and argues that exemptions granted under § 50.12 are limited to extraordinary circumstances. 119 But this is an inapplicable standard; the case cited predates the 1985 Specific Exemptions rule which promulgated the version of § 50.12 applicable to the LME Exemption Request120 and instead focuses on exemptions under a different standard -

117 LME Application, Part I, app. A at VIII.

118 LME Application, Part I, app. A at IX; Petition at 29.

119 See Petition at 34 (citing NRDC v. NRC, 695 F.2d 623, 625 (D.C. Cir. 1982)), and at 34-41.

120 See Specific Exemptions; Clarification of Standards, 50 Fed. Reg. 50,764 (Dec. 12, 1985) (adding

§ 50.12(a)(2).

§ 50.12(b), which applies only to exemption requests from the requirements in § 50.10 related to site preparation activities.121 Petitioner also states the exemption relies on statements from a never-finalized, disapproved draft proposed rule and notes that rule is not binding.122 The NRC Staff notes that the Commission did not disapprove the rule for substantive reasons but rather directed the staff to address financial qualifications during the development of Part 53[.]123 And the fact that the draft proposed rule was not finalized does not prohibit an applicant from requesting an exemption; indeed an exemption would be unnecessary if the rule had been finalized. In addition, Petitioners statement that requiring compliance with 10 C.F.R. § 50.33(f) and 10 C.F.R. Part 50, Appendix C is the only way to make sure [the rules] underlying purpose... is achieved124 is inconsistent with Commission precedent.125 Petitioners arguments do not, therefore, support admission of Contention 3.

iv.

Petitioner demonstrates a genuine dispute with the ARDP funding that is within the scope of the proceeding and material to a finding the NRC must make.

Petitioner states that Contention 3 challenges LMEs assertion that 10 C.F.R.

§ 70.23(a)(5) applies, because Petitioner asserts that LME has not met the standard for an 121 See NRDC v. NRC, 695 F.2d at 624 (noting the NRC authorized site preparation activities).

122 Petition at 34, 36.

123 Staff RequirementsSECY-18-0026Proposed Rule: Financial Qualifications Requirements for Reactor Licensing (July 14, 2022) (ML22195A097). In March 2024, the Commission approved the publication of the proposed rule for 10 C.F.R. part 53. See Staff RequirementsSECY-23-0021 Proposed Rule: Risk-Informed, Technology-Inclusive Regulatory Framework for Advanced Reactors (Mar.

4, 2024) (ML24064A039). Consistent with the Commissions direction, the proposed rule seeks feedback on the application of the 10 C.F.R. part 70 financial qualification requirement. See Risk-Informed, Technology-Inclusive Regulatory Framework for Advanced Reactors, 89 Fed. Reg. 86,918, 86,987 (Oct. 31, 2024) (requesting feedback on, among other things, if there are categories of merchant new reactor applicants for which a part 70 appears to be financially qualified standard would be more appropriate and if the existing standard continue[s] to pose challenges for merchant power plant applicants).

124 Petition at 35 (emphasis added).

125 Nuclear Innovation North America, LLC, (South Texas Projects Units 3 and 4), CLI-16-2, 83 NRC 13 (2016).

exemption under 10 C.F.R. § 50.12 and should therefore be held to the standards in 10 C.F.R.

§ 50.33(f) and Appendix C.126 Petitioner challenges the relevancy of a previous exemption from 10 C.F.R. § 50.33(f) noting that in support of the previously granted exemption, the applicant provided much more detailed information regarding its sources of funding and corporate relationships and proposed a set of [license] conditions to be included in the [combined license] to provide additional assurance of its financial qualifications, which LME has not proposed. 127 Petitioner notes that, instead of including license conditions in its construction permit application and exemption request, LME states that it includes documentation demonstrating commitments of financing equal to more than 50 percent of the construction cost estimate.128 Petitioner challenges the demonstration of the 50 percent financing and argues that the LME discussion of the ARDP funding is inaccurate.129 Petitioner also argues that the exemption does not present special circumstances under 10 C.F.R. § 50.12(a)(2)(ii) because LMEs rationale rests on the premise that ARDP funding will cover 50% of its costs.130 Petitioner further argues that even if the exemption is justified LME fails to demonstrate its financial qualifications under 10 C.F.R. § 70.23(a)(5) because it asserts among other things that the ARDP award that LME relies on will not suffice to cover 50% of construction costs.131 Petitioner asserts that at best only approximately 21-26% of costs might 126 Petition at 44.

127 See Petition at 36-38, 41-43; LME Application, Part V at XVII. The NRC Staff notes this exemption was for a combined construction and operating license (combined license) application and that exemptions are considered on a case-by-case basis. See NRC Office Instruction LIC-103, Exemptions from NRC Regulations, 6 (July 1, 2020) (ML19155A121).

128 Part V at XII-XIII. The NRC Staff or the Commission can impose license conditions even if not proposed by the applicant.

129 Petition at 40.

130 Id.

131 Petition 41. Other bases for Petitioners claim that LME does not meet 10 C.F.R. § 70.23(a) are addressed above.

be covered through ARDP funding, which it states is reimbursable and will be subject to a denial of reimbursement by [the Department of Energy].132 Petitioner relies on updated cost projections for (1) the design and licensing of the Xe-100 standard plant; (2) the design, licensing, and construction of the TRISO-X commercial fuel fabrication facility; and (3) the construction of the Xe-100 facility at the Dow Inc. (Dow) UCC Seadrift Operation site.133 X-energy states the updated cost estimate to complete the full ARDP scope is between $4.75 and $5.75 billion, but notes the range of adjustments does not account for any site-specific cost adjustments related to the Seadrift site or Dows engagement in the ARDP project, which X-energy states could ultimately lead to a reduction in costs.134 Petitioners calculation assumes that ARDP funding will be split evenly between both of the X-Energy projects and concludes the ARDP funding would be between 21 and 26 percent.135 The NRC Staffs review of the CP Application and LMEs exemption request is ongoing, and the Staff takes no position on the merits of Petitioners argument or LMEs Application or exemption request. The Staff notes, however, that LME does not rely on ARDP funding alone; in addition to the ARDP funding, the Applicant states [a]n intercompany agreement is in place ensuring [Dow] will provide financial support to LME for construction of [the facility].136 The NRC Staff also notes that the Application does not clarify whether LMEs commitments demonstrating 50 percent of financing costs are based on the ARDP funding, the agreement between Dow and LME, or some combination of the two. Because Petitioner provides facts and supporting documentation disputing the description of the ARDP funding in the application and 132 Petition at 35.

133 See Petition at 32; X-energy and Ares Acquisition Corporation announce Strategic Update to Business Combination Terms to Reinforce Lont-Term Value Creation Opportunity and Alignment with Shareholders, https://x-energy.com/media/news-releases/x-energy-ares-acquisition-corporation-announce-strategic-update-to-business-combination-terms# (June 12, 2023) (Press Release).

134 Press Release.

135 Petition at 32 n.80.

136 Part I, app. A at IX.

demonstrates this issue is within the scope of the proceeding and material to a finding the NRC must make, Petitioner has satisfied 10 C.F.R. § 2.309(f)(1)(i)-(vi), and this portion of Contention 3 is admissible.

E.

Contention 4 is Partially Admissible In Contention 4, Petitioner argues that the environmental report (ER) minimizes the adverse environmental impacts of the proposed facility.137 Petitioner further argues that the application obscure[s] the actual risk of accidents because of erroneous assumptions and omissions in the PSAR and ER because it states these documents do not include sufficient information and analyses to support LMEs conclusions regarding the magnitude of impacts.138 Petitioner states that the contention seeks compliance by the NRCs environmental review with

[National Environmental Policy Act (NEPA)] and the NRCs implementing regulations.139 More specifically, Petitioner asserts: (1) NEPA requires the NRC Staff to perform an environmental impact statement; (2) the analysis in the environmental report is seriously deficient and is based on deficient a serious deficient safety analysis; (3) the PSAR contains flaws related to climate change; (4) the application does not address external event scenarios; (5) PSAR makes unjustified assumptions about operating basin failure; (6) the environmental report does not explain treating seismic risks as non-credible; (7) the PSAR contains an incomplete analysis of the maximum still water flood level; and (8) there are safety concerns with the storage of spent fuel and the Applicant did not properly assess the environmental effects of continued storage of spent nuclear fuel beyond the operational life of the proposed facility.

The NRC Staffs safety and environmental reviews of the construction permit application are ongoing and, as such, the Staff takes no position on the merits of Petitioners arguments or the Application, but Petitioner has identified two issues that support admission of Contention 4, 137 Petition at 44.

138 Petition at 44-45.

139 Petition at 51.

in part. Because, as discussed in more detail in subsections vii-viii, infra, Petitioner pleads minimum facts to demonstrate there is a contention of omission regarding (1) the flood levels in PSAR Table 2.0-1 that LME states will be supplemented by the end of 2025 and (2) LMEs discussion of the environmental impacts of continued storage of spent nuclear fuel in its CP Application. Petitioner has therefore satisfied 10 C.F.R. § 2.309(f)(1)(i)-(vi) and these portions of Contention 4 are admissible.

i.

NEPA allows agencies to perform an environmental assessment to determine whether an environmental impact statement is required and the NRC Staff has not yet completed its environmental review.

Petitioner asserts that there is a reasonably foreseeable significant effect on the quality of the human environment at least due to the risk of accidents and, as such, an environmental impact statement is required.140 While not explicitly stated, Petitioner appears to challenge NRC Staffs decision to first prepare an environmental assessment to determine whether an environmental impact statement is necessary. Under NEPA, an environmental assessment shall be prepared if the proposed action does not have a reasonably foreseeable significant effect on the quality of the human environment or if the significance of such effect is unknown.141 The NRC Staffs environmental review is ongoing at the time of this filing and, as the NRC Staff noted in response to a separate inquiry on the decision to begin with an environmental assessment, [i]f the [environmental assessment] process determines a [finding of no significant impact] cannot be reached (significant environmental impacts are likely), a full [environmental impact statement] will be prepared.142 This portion of Contention 4 is inadmissible because it 140 Petition at 45.

141 42 U.S.C. § 4336(b)(2).

142 Email from Jon Grieves, NRC, to Karen Hadden, Texas Nuclear Watchdogs (July 30, 2025)

(ML25211A316). The NRC Staff acknowledges that 10 C.F.R. § 51.20(b) requires the NRC to prepare environmental impact statements for certain actions, including construction permits issued under 10 C.F.R. part 50. See 10 C.F.R. § 51.20(b)(2). In the event the NRC Staff reaches a finding of no significant impact at the conclusion of its environmental review and wishes to rely on that finding, the NRC Staff would be required to meet the criteria to issue exemptions under 10 C.F.R. 51.6. See generally does not demonstrate a genuine dispute with the Applicant on a material issue of law or fact, and therefore does not meet 10 C.F.R. § 2.309(f)(1)(vi).

ii.

Petitioner does not explain how its concerns with the PSAR connect to the environmental report.

Petitioner does not dispute any specific environmental impact in the Applicants environmental report, but rather notes these impacts are based on a seriously deficient environmental analysis, which is in turn based on a seriously deficient safety analysis.143 Petitioner states that the ER typically incorporates the analyses from the PSAR, which is a required part of the application under 10 C.F.R. § 50.34(a).144 Petitioner repeats portions of its claims in Contentions 1 and 2 related to functional containment but does not explain how they relate to or even reference the environmental report.145 Thus, this portion of Contention 4 is inadmissible because it does not meet 10 C.F.R. § 2.309(f)(1)(i), (iv), and (vi). To the extent this is a safety contention, it is duplicative of Contentions 1 and 2 and the NRC Staffs response to Contentions 1 and 2 are above.

iii.

Petitioner impermissibly challenges the NRCs regulations.

Petitioner makes several assertions about flaws in the PSAR related to the effects of climate change on the proposed facility, but Petitioners expert cites to no regulation or requirement to address climate change in the PSAR. 146 Instead, Petitioners expert states to my knowledge, the NRC has no regulatory requirement to consider the safety and environmental effects of climate change in its licensing decisions for nuclear reactors.147 Thus, Petitioner does not demonstrate there is a specific issue of law or fact to be controverted, that Kairos Power, LLC (Hermes 2 Test Reactor Facility), CLI-24-3, 100 NRC 135, 144 (2024) (discussing exemption from 10 C.F.R. 51.20(b)).

143 Petition at 44.

144 Petition at 51.

145 Petition at 46.

146 Petition at 47-49.

147 Petition, Ex. F at ¶ 12.

the issue is within the scope of the proceeding, that the issue is material to a decision the NRC must make, or that there is a genuine dispute with the Applicant, as required by 10 C.F.R.

§ 2.309(f)(1)(i), (iii), (iv), and (vi). And [a]ny contention calling for requirements in excess of those imposed by [NRC] regulations has been rejected by the Commission as a collateral attack on the NRCs rules.148 For the reasons above, this portion of Contention 4 is inadmissible.

iv.

Petitioner does not demonstrate a genuine dispute with the applicant because external event scenarios are not required to be provided as part of a construction permit application.

Petitioner argues that the LME CP Application does not address external event scenarios and that LMEs assertion that the total calculated dose risk is less than other reactors is misleading because the [LME Application] does not analyze the external event scenarios.149 While guidance documents such as Regulatory Guide 1.253 do not constitute requirements, guidance documents can provide examples of ways applicants can meet NRC requirements for licensing their reactor facilities.150 NRC Regulatory Guide 1.253 provides that the construction permit PRA level of detail should be commensurate with the preliminary plant design and site characteristics described in the PSAR.151 Regulatory Guide 1.253 also recognizes [i]n many cases, it is expected that the initial selection of SR SSCs [safety-related structures, systems, and components] and selection of the DBAs [design-basis accidents] will be based on a PRA 148 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 315 (2012) (citations omitted); see Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1974) (explaining that a contention that seeks to raise an issue that is not proper for adjudication in the proceeding or that does not apply to the facility in question, or seeks to raise an issue that is not concrete or litigable must also be rejected).

149 Petition at 48, Petition, Ex. F at ¶ 37.

150 See, e.g., Eagle Rock Enrichment Facility, CLI-11-4, 74 NRC at 8 n.35. (Although NRC guidance documents are not legally binding, and compliance with them is not required, they describe an approach to compliance with [NRC] rules that is acceptable to the NRC.).

151 Regulatory Guide 1.253, Guidance for a Technology-Inclusive Content-of-Application Methodology to Inform the Licensing Basis and Content of Applications for Licenses, Certifications, and Approvals for Non-Light-Water Reactors, app. A at A-6 (Mar. 2024) (ML23269A222).

that includes internal events but has not yet been expanded to address external hazards.152 Regulatory Guide 1.253 also recognizes [i]n many cases, it is expected that the initial selection of SR SSCs [safety-related structures, systems, and components] and selection of the DBAs

[design-basis accidents] will be based on a PRA that includes internal events but has not yet been expanded to address external hazards.153 While the NRC Staffs review of the Application is ongoing and the Staff takes no position on the merits of the Application, LMEs Application indicates that it fully complies with NRC Regulatory Guide 1.253.154 The Staff notes that the LME Application states design basis hazard levels include external hazards such as seismic events as well as internal plant hazards such as internal fires and floods, turbine missiles, and [high energy line breaks.]155 The NRC Staff also notes that LME further states that it included a seismic design basis accident in its evaluation in the CP Application because it is expected to be one of the limiting [design basis accidents] in terms of radiological consequences156 and [d]etailed analysis based on site-specific [design basis hazard levels] will be provided in the Final Safety Analysis Report (FSAR) as part of an Operating License Application.157 LME also explains that its probabilistic risk assessment (PRA) model does not yet model internal and external hazards for the purpose of developing [licensing basis events.]158 Petitioners have not explained why this approach is insufficient or why an external hazards analysis is required as part of the construction permit application. Thus, this portion of Contention 4 is inadmissible because it does not demonstrate 152 Id. at A-5 (quoting NEI 18-04, Revision 1, which the NRC endorsed in Regulatory Guide 1.233).

153 Id. at A-5 (quoting NEI 18-04, Revision 1, which the NRC endorsed in Regulatory Guide 1.233).

154 LME Application, Part II at 1.4-21.

155 LME Application, Part II at 6.1-4.

156 LME Application, Part II at 3.2-3.

157 LME Application, Part II at 6.1-4; id. at 3.2-1 (stating licensing basis events from both internal and external hazards will be provided to support the [operating license application].).

158 LME Application, Part II at 3.1-4.

the issue is within the scope of the proceeding, material to findings the NRC must make on the construction permit application, or provide sufficient information to show a genuine dispute exists with LME on a material issue of law or fact, as required by 10 C.F.R. § 2.309(f)(1)(iii), (iv),

and (vi).

v.

No genuine dispute exists because the application purports to make conservative assumptions about embankment failure.

Petitioner asserts that the PSARs assumptions on operating basin failure possibilities are unjustified and Petitioners expert states that no justification is provided related to the failure of the operating basins embankments.159 The NRC Staffs review of the construction permit application is ongoing and the Staff takes no position on the merits of the Application, but the Staff notes that LMEs flood risk evaluation in the application conservatively assumed failure of these embankments.160 Petitioner does not demonstrate any omission or deficiency with this section of the construction permit application. This portion of Contention 4 is therefore inadmissible because it does not demonstrate a genuine dispute with LME on a material issue of law or fact, as required by 10 C.F.R. § 2.309(f)(1)(vi).

vi.

LME mooted one of Petitioners arguments in support of Contention 4 by submitting a supplement correcting an error in Table 5.13.1-1.

Petitioner argues that the ER is deficient because it treats seismic risks as not credible with insufficient explanation for that determination.161 Petitioner elaborates on this portion of the contention in Exhibit F, the declaration of petitioners expert, Mr. Mitman.162 In his declaration, Mr. Mitman asserts that ER Table 5.13.1-1 identifies the evaluated design basis events and that for the seismic event, the table merely states, As discussed in PSAR Section 2.5, a seismic 159 Petition at 47; Petition, Ex. F at ¶ 23.

160 LME Application, Part II at 2.4-161 (stating, Failure of the operating basins embankments... is not considered a credible event. Nevertheless, a conservative approach was adopted in the flood risk evaluation to assume that the embankments would fail.).

161 Petition at 48 (citing Exhibit F).

162 Petition, Exhibit F, at ¶¶ 34-36 (quoting the LME Application, Part III, Environmental Report).

event is not a credible initiating event for the LMGS site.163 Mr. Mitman further asserts that although PSAR Section 2.5 does discuss site seismology, he found no basis for excluding seismic events in the PSAR or ER, which conflicts with well understood knowledge that seismic risk can be a significant contributor to total risk in nuclear plants.164 On August 29, 2025, after petitions for hearing in this proceeding were due, LME supplemented the environmental report in its application to resolve [a]n inconsistency between

[PSAR] Chapter 3, Methodologies, Analyses and Licensing Basis Events, and ER Chapter 5, Environmental Impacts of Station Operation, regarding seismic event evaluation.165 LME states the ER inadvertently indicated that the PSAR did not evaluate hypothetical seismic design basis accidents (DBA), whereas the PSAR in fact included such an evaluation.166 Consequently, this portion of Contention 4 has been mooted and no longer demonstrates a material issue with the application for which a genuine dispute exists, as required by 10 C.F.R.

§ 2.309(f)(1)(iv) and (vi), and is, therefore, inadmissible.

vii.

Petitioner pleads sufficient minimal facts to demonstrate an omission exists with the flood level information in Table 2.0-1.

Petitioner states the PSARs conclusions regarding maximum flood elevations of nearby waterbodies is based only on historic data and incomplete analyses.167 Contentions of omission generally need not provide the same level of factual support required for a contention challenging the adequacy of information in an application.168 The Commission has stated, [i]t is 163 Id. at ¶ 35 (quoting the LME Application, Part III).

164 Id.

165 Letter from Edward Stones, LME, to Document Control Desk, NRC, Supplement #1 to the Environmental Report for the Long Mott Generating Station Construction Permit Application (Aug. 29, 2025) (ML25241A352); Enclosure 1, LMGS ER Supplement #1 (ML25241A353).

166 Id.

167 Petition at 47.

168 Tennessee Valley Auth. (Clinch River Nuclear Site Early Site Permit Application), CLI-18-5, 87 N.R.C.

119, 122 (2018).

enough for a petitioner to identify the information that is claimed to be missing and demonstrate why that information is required.169 In support of this argument in support of Contention 4, Petitioners expert cites to footnote 3 to Table 2.0-1, Long Mott Generation Station (LMGS) Site Characteristics, of LMEs CP Application, which states that [a]dditional site-specific analyses will be provided by the end of 2025[,]170 to assert that PSAR Table 2.0-1, indicates that LMEs analysis of the maximum still water flood level is incomplete.171 Petitioner notes that this footnote in the Application also modifies the Combined Effects Maximum Flood Elevation (Coloma Creek) entry in PSAR Table 2.0-1, and Petitioners expert states that the lack of complete or accurate data and analysis of historic flood levels on Coloma Creek makes it impossible to conduct a thorough, complete and accurate safety evaluation.172 The Staffs review of the Application is ongoing and the Staff takes no position on the merits of Petitioners argument, but Petitioner pleads minimum facts to demonstrate there is a contention of omission regarding the flood levels in PSAR Table 2.0-1 that LME states will be supplemented by the end of 2025. As such, Petitioner has satisfied 10 C.F.R. § 2.309(f)(1)(i)-(vi) and this portion of Contention 4 is admissible.

viii.

Petitioner does not provide sufficient detail on its safety concerns regarding storage of spent nuclear fuel but pleads sufficient minimal facts to demonstrate an omission exists regarding LMEs analysis of the environmental effects of continued storage of spent nuclear fuel.

Finally, in Contention 4, Petitioner makes assertions about the storage of spent nuclear fuel and LMEs reliance on NUREG-2157 (hereinafter Continued Storage GEIS) to dispute the CP Applications discussion of the storage of spent nuclear fuel.173 Although Petitioner frames Contention 4 as an environmental contention, this portion of the contention, in addition to raising 169 Id.

170 LME Application, Part II at 2.0-2-2.0-4.

171 Petition, Ex. F at ¶ 18.

172 Id.

173 Petition at 49-50.

concerns about the ER, makes at least one assertion concerning safety. For completeness, the NRC Staff addresses both. While the potential safety contention does not support admission of Contention 4, the environmental discussion supports admission of this portion of Contention 4 as a contention of omission.

Looking first at the potential safety contention in Contention 4, Petitioner asserts that LMEs discussion regarding storage of spent nuclear fuel also fails to comply with applicable regulationswhich further undermines LMEs conclusions regarding safety, and creates a risk of reasonably foreseeable environmental impacts, which must be evaluated. 174 To the extent Petitioner intends to raise a safety contention, the contention is inadmissible. Apart from 10 C.F.R. § 51.23, which relates only to the environmental impacts of continued storage of spent nuclear fuel beyond the reactors licensed life for operation, and not to safety, Petitioner does not identify which applicable regulations the discussion regarding storage of spent nuclear fuel fails to comply with. Further, Petitioner does not identify any specific deficiencies regarding storage of spent nuclear fuel in the PSAR. The Petitioner also does not provide expert opinions or any alleged facts supporting its bare assertion that LMEs safety conclusions are further undermined. Therefore, in the event Petitioner intends to frame this portion of the contention as a safety contention, the contention is inadmissible because the Petitioner has not: (1) provide[d]

a concise statement of the alleged facts or expert opinions which support the petitioners position on the issue or references to specific sources and documents on which the petitioner intends to rely to support its position or (2) provide[d] sufficient information to show that a genuine dispute exists with the applicant on a material issue of fact.175 As such, this argument does not support admission portion of Contention 4 is inadmissible because it fails to meet the contention applicability requirements in 10 C.F.R. § 2.309(f)(1)(v) and (vi).

174 Petition at 49.

175 10 C.F.R. § 2.309(f)(1)(v)-(vi).

Turning to Petitioners arguments that appear to challenge the environmental report, Petitioner fundamentally raises a contention of omission. Petitioner asserts that LME was required to conduct an assessment of the impacts of continued storage of spent nuclear fuel beyond the licensed lifetime of the reactor or seek an exemption, but instead relied on the Continued Storage GEIS and 10 C.F.R. § 51.23 to satisfy this requirement.176 Petitioner further states that the Continued Storage GEIS and 10 C.F.R. § 51.23 apply only to light-water reactors, not non-light-water reactors, such as the one proposed here.177 Petitioner also notes that although [t]he NRC has proposed a rule adopting a [GEIS] for advanced, or non-light-water reactors, which if and when adopted, would allow non-light water reactors to rely on NUREG-215[7] and 10 C.F.R. § 51.23, this rule has not yet been finalized or adopted. And so, it does not apply here.178 Petitioner pleads sufficient facts to demonstrate a contention of omission regarding LMEs discussion of the environmental impacts of continued storage of spent nuclear fuel in its CP Application. LME relies on the Continued Storage GEIS in its CP Application for its small, modular, high-temperature, gas-cooled reactor, but does not include analysis demonstrating how the Continued Storage GEIS applies.179 The Continued Storage GEIS addresses the environmental impacts of continued storage and 10 C.F.R. § 51.23 codifies the results of that analysis.180 The Continued Storage GEIS and 10 C.F.R. § 51.23 apply primarily, albeit not exclusively, to fuel from light-water reactors, but LMEs proposed reactor is not a light-water reactor and will not utilize the same fuel as light water reactors.181 Although the Continued 176 Petition at 49-50.

177 Id. at 49.

178 Id. at 49-50 n.127.

179 LME Application, Part III, Environmental Report at 5.7-8, 5.7-9, 5.7-13.

180 Continued Storage of Spent Nuclear Fuel; Final Rule, 79 Fed. Reg. 56,238, 56,239 (Sept. 19, 2014)

(Continued Storage Rule).

181 Id. at 56,243.

Storage GEIS and 10 C.F.R. § 51.23 apply to the fuel from a specific high-temperature gas-cooled reactor (HTGR), the Continued Storage GEIS discusses its applicability to HTGRs generally.182 As discussed in the Continued Storage GEIS, if the NRC is asked to review one or more license applications for a high-temperature gas-cooled reactor facility, then the environmental impacts of continued storage of that spent fuel will be considered in individual licensing proceedings unless the NRC updates the GEIS and corresponding rule to include the environmental impacts of storing this type of fuel after a reactors licensed life for operation.183 To that last point, the NRC Staff is conducting a rulemaking, which the Petitioner references, and notes that, if adopted, would allow non-light water reactors to rely on NUREG-215[7] and 10 C.F.R. § 51.23.184 Although the Petitioner does not cite the specific proposed rule or GEIS that would allow non-light water reactors to rely on the Continued Storage GEIS in certain circumstances, Petitioner likely refers to the [GEIS] for Licensing of New Nuclear Reactors proposed rule published in the Federal Register on October 4, 2024, and the associated New Nuclear Reactor (NR) GEIS.185 The Petitioner is correct that, if finalized, this proposed rule would codify the NR GEIS, which includes a determination that the findings in the Continued Storage GEIS are applicable to [non-light-water reactor] fuel, provided that certain conditions are met.186 The Petitioner is also correct that this rule does not apply yet.

182 Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel (Final Report), NUREG-2157, vol. 1, at 2-10 (Sept. 30, 2014) (ML14196A105) (Continued Storage GEIS).

183 Id. This discussion in the Continued Storage GEIS is ambiguous. It is unclear whether this language refers to all HTGRs or only HTGRs that use TRISO fuel particles. See id. In any event, the proposed reactor here uses TRISO fuel particles. Therefore, this language covers this reactor, regardless of its precise scope. Further, the fact that the proposed reactor is an small modular HTGR rather than an HTGR, does not affect the applicability of these statements.

184 Petition at 49-50 n.127.

185 See generally Generic Environmental Impact Statement for Licensing of New Nuclear Reactors; Proposed Rule, 89 Fed. Reg. 80,797 (Oct. 4, 2024) (NR GEIS Proposed Rule) and Generic Environmental Impact Statement for Licensing of New Nuclear Reactors (Draft report for Comment),

NUREG-2249 (Sept. 30, 2024) (ML24176A220).

186 NR GEIS Proposed Rule, 89 Fed. Reg. at 80,797, 80,806.

Moreover, LME does not cite the NR GEIS in its environmental report. Rather, it relies on the Continued Storage GEIS and on 10 C.F.R. § 51.23 as currently written without providing analysis demonstrating that the Continued Storage GEIS applies.187 Applications not covered by the Continued Storage GEIS as codified in 10 C.F.R. § 51.23 are required to address the environmental impacts of the continued storge of spent nuclear fuel beyond the licensed life for operation of a reactor.188 An applicant not covered by the Continued Storage GEIS can rely on it, if the applicant demonstrates that the Continued Storage GEISs analysis bounds the proposed facility.189 LMEs justification for its reliance on the Continued Storage GEIS, however, is the conclusory statement that [w]aste and spent fuel inventories, as well as their associated certified spent fuel shipping and storage containers are not significantly different from what has been considered for LWR evaluations in [the Continued Storage GEIS].190 As LME did not include any supporting analysis for that statement, by identifying the omitted information, Petitioner has raised a genuine dispute within the scope of the proceeding that is material to the findings the NRC Staff must make to reach a decision on the CP Application and this portion of 187 LME Application, Part III at 5.7-8, 5.7-9, 5.7-13.

188 The NRC staff acknowledges that the plain meaning of certain text in Part 51 appears to indicate this information is not required. 10 C.F.R. §§ 51.23(b), 51.50(a); see 10 C.F.R. § 51.50(b)(3) and (c). As discussed above, the Continued Storage GEIS and 10 C.F.R. § 51.23 both have limited applicability. With regard to HTGRs, the Continued Storage GEIS specifically states that the environmental impacts of continued storage of that spent fuel will be considered in individual licensing proceedings. Continued Storage GEIS at 2-10. The Statements of Consideration for the rulemaking incorporating the Continued Storage GEIS into 10 C.F.R. § 51.23 state that the Continued Storage GEIS provides a technical regulatory basis for this rule. Continued Storage Rule, 79 Fed. Reg. at 56,239. As the Continued Storage GEIS does not consider reactors like LMEs proposed reactor, it cannot provide a technical basis for incorporating the analysis of the effects of continued storage after the operating life of the reactor for the proposed reactor. Further, when discussing the purpose of the rulemaking, the above-quoted Statements of Consideration state that, Because the impacts of continued storage have been generically assessed in the GEIS, NEPA analyses for relevant future reactor licensing actions will not need to separately determine the environmental impacts of continued storage. Id. at 56,245. In the case of the proposed reactor, however, the impacts of continued storage have not been generically assessed and, therefore, licensing applicants will need to separately determine the environmental impacts. Therefore, LME was required to include an evaluation of the effects of continued storage after the operating life of the reactor in its ER.

189 If an applicant made such a demonstration, however, issues covered by the Continued Storage GEIS would not be considered resolved via 10 C.F.R. § 51.23 for that applicant.

190 LME Application, Part III at 5.7-8, 5.7-9, 5.7-13.

Contention 4 is, therefore, admissible. Because Petitioner has satisfied 10 C.F.R. § 2.309(f)(1)(i)-

(vi) for this portion of Contention 4, Contention 4 is admissible, in part, based on LMEs omission from the CP Application of a required analysis of the effects of continued storage of spent nuclear fuel after the operational life of the proposed facility.

CONCLUSION Waterkeeper has established representational standing to intervene in this proceeding and portions of Contentions 1, 3, and 4, meet contention admissibility requirements. For the reasons above, the NRC Staff does not oppose admission of: (1) Contention 1 regarding omission of a schedule of the research and development program showing that [safety questions on structures, systems, or components of the facility that require research and development to confirm the adequacy of their design] will be resolved at or before the latest date stated in the application for completion of the facility (emphasis added)[,] as required by 10 C.F.R. § 50.34(a)(8); (2) Contention 3 regarding the adequacy of private and ARDP funding; and (3) Contention 4 regarding the omission of data described in PSAR Table 2.0-1 and the omission of the required analysis of the effects of continued storage of spent nuclear fuel for LMEs high-temperature gas-cooled reactor after the operational life of the proposed facility to support reliance on the Continued Storage GEIS. These portions of Contentions 1, 3, and 4 meet the minimum requirements in 10 C.F.R. § 2.309(f)(1)(i)-(vi). The Staff opposes the admission of Contention 2 in its entirety and all remaining portions of Contentions 1, 3, and 4, because they do not meet the contention admissibility requirements in 10 C.F.R. § 2.309(f)(1)(i)-

(vi).

Respectfully submitted,

/Signed (electronically) by/

Julie G. Ezell Counsel for NRC Staff Mail Stop: O15-B04 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: 301-287-9157 E-mail: julie.ezell@nrc.gov

/Executed in Accord with 10 CFR 2.304(d)/

Samuel K. Stephens Counsel for NRC Staff Mail Stop: O15-B04 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: 301-415-1581 E-mail: samuel.stephens@nrc.gov Executed in Accord with 10 CFR 2.304(d)/

Nicolas P. Mertz Counsel for NRC Staff Mail Stop: O15-B04 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: 301-415-1581 E-mail: nicolas.mertz@nrc.gov

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of LONG MOTT ENERGY, LLC (Long Mott Generating Station)

Docket No. 50-614-CP Certificate of Service Pursuant to 10 C.F.R. § 2.305, I hereby certify that the NRC STAFFS ANSWER TO SAN ANTONIO BAY ESTUARINE WATERKEEPER PETITION TO INTERVENE AND REQUEST FOR HEARING, has been filed through the NRCs E-Filing System this 5th day of September 2025.

/Signed (electronically) by/

Julie G. Ezell Counsel for NRC Staff Mail Stop: O15-B04 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: 301-287-9157 E-mail: julie.ezell@nrc.gov