ML25258A244

San Antonio Bay Estuarine Waterkeeper’S Reply in Support of Petition to Intervene and Request for Hearing

ML25258A244
Person / Time
Site:	05000614
Issue date:	09/12/2025
From:	Krebs C, Perales M Perales, Allmon & Ice, P.C., San Antonio Bay Estuarine Waterkeeper
To:	NRC/OCM
SECY RAS
References
RAS 57481, 50-614-CP, ASLBP 25-991-01-CP-BD01
Download: ML25258A244 (0)

Text

1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of:

Long Mott Energy, LLC (Long Mott Generating Station)

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§ Docket No. 50-614-CP September 12, 2025 SAN ANTONIO BAY ESTUARINE WATERKEEPERS REPLY IN SUPPORT OF PETITION TO INTERVENE AND REQUEST FOR HEARING NOW COMES San Antonio Bay Estuarine Waterkeeper (Waterkeeper or Petitioner), by and through counsel, and submits this Reply in Support of its Petition to Intervene and Request for Hearing in the above-captioned proceeding.

I.

Waterkeeper has demonstrated it has Standing to intervene LMEs arguments in favor of disregarding the proximity presumption boil down to an argument that no standards apply and no one would have standing to challenge an advanced reactor like LMEs. The NRC Staffs Answer underscores that the Commissions precedent does not compel this finding and in fact, weighs in favor of the application of the proximity presumption in this case. Furthermore, Waterkeeper has satisfied the requirements for constitutional standing.

A.

The NRC Staffs extension of the proximity presumption to Waterkeeper is squarely in line with its existing precedent, and a different result is not warranted by law or policy.

LME's opposition to the proximity presumption relies heavily on its assertion that LMGS has no offsite plume exposure pathway (PEP) emergency planning zone

2 (EPZ).1 However, the Commission has expressly rejected the argument that standing should not be presumed unless a petitioner resides within a facilitys EPZ, and has specifically decline[d] to rule that the level of risk appropriate to triggering emergency planning requirements is necessarily the same as that sufficient to permit a concerned neighbor to file a petition.2 Denying standing even if a declarants home were located directly across the street seems neither realistic nor consistent with the Commissions direction to construe standing in favor of the petitioner.3 As the NRC Staff recognizes, one of Waterkeepers declarants, Mr. John Daniel, lives within 4 miles of the proposed facility.4 As his Declaration explains, he is so close to the Dow/Union Carbide plant that

[he] can see it from [his] kitchen window and yard; the proposed nuclear reactor will be even closer to him.5 LMEs argument that Mr. Daniel does not have standing because LMGS has no EPZ is inconsistent with NRC precedent.

Furthermore, even as LME articulates that the proximity presumption does not apply to all NRC adjudicatory proceedings, it fails to fully recognize the proceedings in which the proximity presumption does apply, and why, which the NRC Staff summarizes.6 The applicable standard is not one of proceeding or facility type, but of risk.7 The core 1 LME Answer, pp. 17-18.

2 In the Matter of Interim Storage Partners LLC (WCS Consolidated Interim Storage Facility), 90 N.R.C.

31, 49 (2019).

3 Id.

4 NRC Answer, p. 7.

5 Daniel Decl. ¶ 2.

6 NRC Answer, p. 7 n.27.

7 See id.

3 purpose of proximity-based standing is a protective one.8 As such, while the NRC Staff reasoned that the full 50-mile radius may not be fully applicable to smaller, advanced reactors like the LMGS, proximity-based standing is nonetheless appropriate: In any event, one of Waterkeepers members and declarants lives within 4 miles of the proposed facility, which is well within the proximity presumption that Licensing Boards have previously applied to license amendment proceedings for operating reactors.9 The presumption is viable in nonpower reactor and materials proceedings as well.10 In addition to the discussion of Mr. Daniel, supra, Ms. Diane Wilson regularly monitors for plastic discharges at Dow/Union Carbides outfalls located less than a half mile from the proposed LMGS.11 It is not 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 LMGS.12 No law, nor Executive Order, justifies the withholding of the proximity presumption in this matter either.13 LMEs arguments amount to little more than another iteration of the position that the interaction of existing regulations with novel technologies results in a lack 8 See id. at p. 6 (quoting Exelon Generation Co., LLC (Peach Bottom Atomic Power Station, Units 2 & 3),

CLI-05-26, 62 N.R.C. 577, 580 (2005)). It is also worth noting that the NRC Staff has expressly declined to take a position on the acceptability of LMEs proposed boundary at this time. NRC Answer, p. 6 n.25.

9 Id. at p. 7 (emphasis added) (first citing Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Unit 3), LBP-20-8, 92 N.R.C. 23, 42-45 (2020); then Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4), LBP-16-5, 83 N.R.C. 259, 275-76 (2016); then Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4), LBP-16-10, 84 N.R.C. 17, 36 (2016)).

10 Id. (first citing Georgia Institute of Tech. (Georgia Tech Research Reactor), CLI-95-12, 42 N.R.C. 111, 117 (1995); then citing Interim Storage Partners (WCS Consolidated Interim Storage Facility), LBP-19-7, 90 N.R.C. 31, 48-49 (2019)). The NRC Staff also noted that it had previously determined that Waterkeeper would be likely to establish standing to participate in this proceeding in its letter granting SUNSI access.

Id. at p. 7, n.28.

11 Wilson Decl. ¶ 8.

12 Georgia Institute of Tech. (Georgia Tech Research Reactor), CLI-95-12, 42 N.R.C. 111, 117 (1995)

(internal quotation marks and citation omitted).

13 See LME Answer, p. 17 n.63; p. 20 n.75.

4 of workable standards and precedent. This equivocation is incorrect and inconsistent with the Commissions longstanding practice and procedures.

Consistent with Commission precedent, the NRC Staff recognized Waterkeepers representational standing.14 B.

Furthermore, Waterkeeper has satisfied traditional standing requirements.

Nonetheless, Waterkeeper has not relied solely upon a presumption of standing. It has demonstrated (i) an injury in fact (ii) that is fairly traceable to the challenged conduct and (iii) that is likely to be redressed by a favorable decision to establish standing under Article III of the Constitution.15 Article III standing requires an injury in fact that is concrete and particularized and actual or imminent.16 In cases alleging future injuries from a yet-to-be-built facility, 14 NRC Answer, p. 7.

15 Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992); see also Massachusetts v. EPA, 549 U.S. 497, 517 (2007) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)) (explaining that the gist of the question of standing is whether [plaintiffs] have such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination); Sierra Club v. Morton, 405 U.S. 727, 734-35, 738 (1972) (recognizing injuries other than economic harm and reasoning the fact that harms may be shared by many does not diminish their relevance in Article III standing considerations; a plaintiff need only show that they themselves are among the injured).

16 Lujan, 504 U.S. at 560-61. Plaintiffs demonstrate particularized recreational and aesthetic injuries in public areas sufficient for Article III standing when they use the affected area and are persons for whom the aesthetic and recreational values of the area will be lessened by the challenged activity. Friends of the Earth, Inc. v. Laidlaw Envt Servs. (TOC), Inc., 528 U.S. 167, 183 (2000) (quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972)). Plaintiffs demonstrate injuries to their recreational and aesthetic interests sufficient for Article III standing when future exposure to pollutants would cause a plaintiff to forego their regular recreational activities on public land. See, e.g., Sierra Club v. Franklin Cnty. Power of Ill., LLC, 546 F.3d 918, 926 (7th Cir. 2008). Similarly, when the enjoyment of an individuals recreational activities is dependent on environmental qualityand the proposed action would cause degradation of the environmentthe harm constitutes injury for standing. See Sierra Club, Lone Star Chapter v. Cedar Point Oil Co. Inc., 73 F.3d 546, 556 (5th Cir. 1996) (finding that affiants whose enjoyment of recreational activities depended on good water quality had a direct stake sufficient to establish injury in-fact). Harm to a plaintiffs recreational and aesthetic interests is particularized when the plaintiff had repeatedly visited the affected area and had plans to do so again. S. Utah Wilderness All. v. Palma, 707 F.3d 1143, 1156 (10th

5

[t]he Supreme Court has expressly held that a threatened injury will satisfy the injury in fact requirement for standing.17 Plaintiffs challenging an agencys alleged inadequate environmental review satisfy the traceability and redressability requirements of Article III where alleged procedural failures by the agency resulted in approving [a permit] without undergoing the legally mandated review process, which in turn, will lead to the construction of the project, causing [plaintiffs] injuries.18 Living or working only a few miles from a proposed facility, alleging safety risks associated with the proposed facilitys design, and claiming economic harm due to a potential reduction in property value can satisfy the injury, causation, and redressability requirements of Article III standing in the context of NRC regulatory proceedings.19 Risks associated with injury from radiation and groundwater contamination can be actual or imminent, even if they may not reach [a] community for thousands of years.20 By characterizing Waterkeepers alleged harms as vague references to speculative harms Cir. 2013); see also Sierra Club v. EPA, 939 F.3d 649, 664-65 (5th Cir. 2019) (plaintiff who regularly visited national parks and had plans to visit in the future had a particularized interest for standing).

17 Citizens for Clean Air & Clean Water in Brazoria Cnty. v. U.S. Dept of Transp., 98 F.4th 178, 187 (5th Cir. 2024) (Citizens for Clean Air) (quoting Cedar Point Oil, 73 F.3d at 556) (finding Petitioners had alleged actual and imminent injuries-in-fact based on concerns about diminished air and water quality and recreational harms from a proposed, but not constructed, oil export terminal).

18 Citizens for Clean Air, 98 F.4th at 188, n.5.

19 Beyond Nuclear, Inc. v. NRC, 113 F.4th 956 (D.C. Cir. 2024); see Nuclear Info. & Res. Serv. v. NRC, 509 F.3d 562 (D.C. Cir. 2007) (explaining that individuals who live near a proposed federal project and allege that they will suffer concrete injury from the project have standing in NEPA and other procedural rights cases) (citing Lujan, 504 U.S. at 572 n.7 (standing for one living adjacent to the site for proposed construction of a federally licensed project, even where party cannot establish with any certainty that remedying procedural defect will cause the license to be withheld or altered)). In Nuclear Info. & Res.

Serv. v. NRC, petitioners living near a proposed uranium enrichment facility alleged a risk of injury from radiation and had standing to challenge a license issuance. Id. at 567.

20 Nuclear Energy Inst., Inc v. EPA, 373 F.3d 1251 (D.C. Cir. 2004).

6 from pollution and radiation,21 LME improperly glosses over the serious, significant risks associated with the proposed facility that Waterkeepers members have identified as bearing upon and impacting their interests.

For example, LME asserts that Ms. Wilson provides no explanation for how the

[facilitys] wastewater discharges will cause injury to her personally.22 But, as discussed supra, Ms. Wilson, a retired fourth generation shrimper with long-standing recreational and aesthetic interests in the Bays within at least 2.5 miles of the LMGS,23 regularly monitors for plastic discharges at Dow/Union Carbides outfalls, including land outfalls that are located less than half a mile from the proposed LMGS.24 Ms. Wilson love[s] the water, and she frequently fish[es], boat[s], and observe[s] wildlife in the Lavaca, Matagorda, and San Antonio Bays.25 Ms. Wilson directly ties her concerns about wastewater to her understanding the LMGS will discharge directly into where she is regularly present for monitoring in the Victoria Barge Canal, within 2.5 miles of the proposed facility.26 She also explains, Given that the plastic contamination spreads at least seven miles upstream and downstream of the outfalls, I am worried about the spread of Long Motts wastewater and the negative effects it will have on the health of the Bays, its ecosystems, and its people.27 21 LME Answer, p. 21.

22 Id. at 22.

23 Wilson Decl. ¶ 3.

24 Id. at ¶ 8.

25 Id. at ¶ 12. This includes endangered species like the whooping crane. San Antonio Bay is within 10 miles of the LMGS, Lavaca Bay is within 13 miles, and Matagorda Bay is within 15 miles.

26 Id. at ¶ 8.

27 Id.

7 Ms. Wilson also emphasizes her health and safety concerns with the facilitys novel design,28 in addition to harms to her aesthetic and recreational interests in natural areas she has spent four decades working to protect and restore.29 She underscores her concerns that the proposed nuclear reactors are untested and unsafe, and that she is worried about the integrity and security of the facility in the event of a hurricane, storm surge, flooding, terrorist attack, plane crash, or other disaster.30 Additionally, as discussed, supra, Mr. Daniel is a property owner with recreational, aesthetic, and economic interests living less than four miles northeast of the proposed facility, close enough to Union Carbide/Dow that he can see it from his kitchen window and yard, and located even closer to the site of the proposed LMGS.31 Furthermore, he has a lease with his son to run cattle on the land, the nearest corner of which is located approximately 3.25 miles from the proposed facility.32 He directly ties his 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 (as recognized by the NRC Staff33) to his property, recreational, aesthetic, economic, and other uses of his land by him and future generations.34 28 Wilson Decl. ¶ 9.

29 Id. at ¶¶ 8-13.

30 Id. at ¶ 9.

31 Daniel Decl. ¶ 2.

32 Id.

33 NRC Answer, p. 5.

34 Moreover, each of the four Waterkeeper declarants specifically alleges concerns about health and safety in the context of the novel design of the LMGS facilitywhich Waterkeepers contentions directly address.

Wilson Decl. ¶ 9; Blanco Decl. ¶ 7; Miller Decl. ¶ 7; Daniel Decl. ¶ 5. Standing and contention admissibility are two distinct inquiries. Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Unit 3), LBP-20-8, 92 N.R.C. 23, 45 (2020); see also Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4), LBP-16-5, 83 N.R.C. 259, 269 (2016) (In deciding whether [petitioner] has established

8 Mr. Curtis Miller and Mr. Mauricio Blanco are commercial fishermen with economic interests working in the bodies of water and at docks as close as 5 miles and 9 miles, respectively, of the proposed LMGS.35 Mr. Miller and Mr. Blanco make their livings and support their families by fishing in these waters,36 and they explain their concerns about how the impacts of the proposed LMGS could interfere with their livelihoods and threaten their health and well-being.37 In addition to working as a commercial fisherman, Mr. Miller is the owner of his family business, Millers Seafood, which has passed down through his family generationally.38 Among other things, a petitioner may be concerned about potential long-term effects that have nothing to do with a sudden emergency.39 And again, concerns about environmental contamination can establish standing, even though it may not reach

[a] community for thousands of years.40 Mr. Miller expresses concerns about his generational family business.41 Ms. Wilson explains that she is a fourth-generation retired shrimper in the San Antonio Bay, Matagorda Bay, and Lavaca Bay area.42 Mr. Daniel states standing, we do not decide the admissibility or merits of its contentions.). Nevertheless, Waterkeepers declarants have tied their interests to the injuries they reasonably expect to result from the deficiencies noted in Waterkeepers contentions.

35 Blanco Decl. ¶ 3; Miller Decl. ¶ 2.

36 Blanco Decl. ¶ 3; Miller Decl. ¶¶ 2-3. The proposed reactors would be located approximately three miles to nursery areas of embryonic shrimp, for example, which live in the Bays later in their lives. Any contamination or radiation could threaten to wipe out a whole seasons crop. Wilson Decl. ¶ 13.

37 E.g., Blanco Decl. ¶¶ 6-7; Miller Decl. ¶¶ 6-7.

38 Miller Decl. ¶ 3.

39 In the Matter of Interim Storage Partners LLC (WCS Consolidated Interim Storage Facility), 90 N.R.C.

31, 49 (2019). The NRC Staff has indicated that, in its view, Waterkeepers contention regarding the environmental impacts of storing spent nuclear fuel is admissible in this matter. NRC Answer, p. 37.

40 Nuclear Energy Inst., Inc v. EPA, 373 F.3d 1251 (D.C. Cir. 2004).

41 Miller Decl. ¶ 8.

42 Wilson Decl. ¶ 3.

9 that he has transferred land to his son that took him a lifetime to put together.43 Each declarant expresses concerns about long-term impacts, including water and other environmental contamination relevant to this proceeding.44 For all these reasons, including those previously articulated in the Petition, Waterkeeper has satisfied its burden of establishing standing in this proceeding.

II.

Contention 1 is admissible in its entirety.

By its Contention 1, Waterkeeper challenges whether the LM-CPA proposed functional containment design satisfies the requirements of 10 C.F.R. § 50.34. While NRC Staff agree that Waterkeepers contention 1 should be granted in part, Long Mott maintains that the entire contention should be rejected.

For support, both LME and Staff argue that Waterkeeper mistakenly relied on guidance documentsversus specific regulatory requirementsto support their contention. But this mischaracterizes Waterkeepers Contention 1. And it fails to acknowledge the main principle raised by Waterkeepers contentionLMEs functional containment does not satisfy the regulatory requirements for offsite dose limits applicable to a PSAR as specified in 10 C.F.R. § 50.34(a)(1)(ii)(D).

A.

The term functional containment is not included in NRCs Rule 50.34 because it is a novel conceptbut this does not render the regulatory requirements inapplicable.

The instant proceeding on LMEs CPA presents the NRC with the first potential adjudication of a Part 50 construction permit application involving a proposed functional 43 Daniel Decl. ¶ 7.

44 E.g., Wilson Decl. ¶¶ 8, 10; Blanco Decl. ¶¶ 6-7; Miller Decl. ¶¶ 6-8; Daniel Decl. ¶¶ 5-6.

10 containment. Thus, the decision in this matter regarding LMEs application could be precedent-setting in naturewhich in turn could inform future applications that also rely on functional containment.

The term functional containment, however, does not appear in 10 CFR 50.34, nor anywhere else in the NRCs regulations; thus, there are no specific requirements that expressly govern its effectiveness, other than those that apply generally to the containment that is referenced in regulations, such as the General Design Criteria in Part 50, Appendix A. But the proposed functional containment must still be evaluated to ensure it complies with safety regulations, such as the dose criteria in 10 C.F.R. § 50.34(a)(1)(ii)(D).The only criteria available to specifically assess the adequacy of LMs proposed functional containment are to be found in the NRC guidance documents where functional containment is addressed.

In sum, contrary to LMs argument, Waterkeepers entire contention is not premised on the belief that non-binding guidance documents somehow impose regulatory requirements.45 Rather, the guidance document was referenced as a tool to evaluate, for example, whether LMs proposed functional containment satisfied the regulatory safety requirements in 10 CFR 50.34(a)(4) and 10 CFR 50.34(a)(8) for adequacy of structures, systems, and components provided for prevention of and mitigation of the consequences of accidents.

45 LME Answer, p. 28.

11 B.

Waterkeeper challenges whether LMEs functional containment satisfies the applicable regulatory requirements, not whether it satisfies sample criteria in RG 1.232.

LME argues that Waterkeepers Contention 1 is incurably flawed because it challenges the wrong PDC. That is, LME maintains that Waterkeeper mistakenly relied on sample design criteria presented in RG 1.232, instead of disputing the actual PDCs in the CPA.

According to LME, its plants safety is evaluated against its PDC, and for advanced reactors, those PDC are developed by the applicant, on a case-by-case basis using NRC Regulatory Guide 1.232 as guidance. But there are no minimum criteria established by the guidance document for compliance with NRC regulations, according to LME.46 At bottom, by claiming that the regulatory guidance does not apply here, even with regard to the underlying technical rationale provided by the NRC staff in developing its guidance, and in the absence of any regulatory requirements governing functional containments, Long Mott essentially seeks to relieve itself of having to comply with any regulatory requirements at all.

Contrary to LMEs argument, Waterkeepers contention did not seek to rely on sample design criteria in RG 1.232 as a regulatory requirement for evaluating LMEs PDCs; nor does Waterkeeper challenge the specific PDCs in its PSAR. Rather, Waterkeeper sought to reference the only measuring stickor standardfor evaluating 46 LME Answer, pp. 30-31.

12 whether LMEs novel functional containment concept satisfies regulatory limits for offsite dose.

Whether LMEs PDCs strictly align with the MGTGR-DC found in RG 1.232 or whether LME developed their own novel PDC, using RG 1.232 as guidance, they must still achieve a safety standard that is analogous to a physical containment. NRC staff concluded in its safety evaluation of the LM PDC LTR that LMEs revision of the MHTGR-DC 16 (in RG 1.232, Appendix C) satisfies the underlying intent of MHTGR-DC 16 in RG 1.232; that is, staff relied on RG 1.232 as guidance to evaluate LMEs PDC.

That underlying intent cited by staff can be found in Appendix C, under Criterion 16 (Containment Design), wherein staffs rationale for modifying PDC 16 for MHTGRs specifically cited the condition that approval of the proposed approach to functional containment for the MHTGR concept, with its emphasis on passive safety features and radionuclide retention within the fuel over a broad spectrum of off-normal conditions, would necessitate that the required fuel particle performance capabilities be demonstrated with a high degree of certainty.47 Waterkeeper agrees; whatever PDC LME uses for its functional containment concept, any deviation from the corresponding GDC 16 to allow use of a functional containment necessitates that the required fuel particle performance capabilities be demonstrated with a high degree of certainty. This is not because Waterkeeper seeks to impose the criteria in RG 1.232 as regulatory requirements; but rather, because this rationale expresses the underlying intent of MHTGR-DC 16 in RG 47 Id., p. C-9 (quoting from NRC staffs Next Generation Nuclear PlantAssessment of Key Licensing Issues).

13 1.232. And it serves as a measuring stick to determine the adequacy of LMEs proposed functional containment concept.

LME argues that this Certainty Language underscoring the need to demonstrate fuel particle performance with a high degree of certainty is not a regulatory requirement.

What it does not explain, however, is whether LME believes that the alternativea low degree of certainty in the fuel particle performance capabilitieswould be adequate in its estimation. That is, does LME maintain that because it believes the Certainty Language does not impose any substantive performance standard, LME may rely on a low degree of certainty in its fuel particle performance capabilities? Has it done so here? Is this acceptable? This is the crux of Waterkeepers contentionnot whether LMEs PDC specifically align with the language in Appendix C of RG 1.232.

It is worth reiterating that the term functional containment is not defined in NRC regulations and hence guidance is all the Commission has provided; so, it makes sense that the guidance plays a unique role here. LME acknowledges this in its own CPA.48 C.

Staff correctly concluded that Waterkeeper raised a valid contention regarding compliance with 50.34(a)(8), but failed to acknowledge how this failure to comply with 50.34(a)(8) resulted in the other deficiencies identified in Contention 1.

NRC staff correctly recognized that Waterkeepers identification of the omission of critical information from the LM-CPA calls into question the applicants compliance with 48 See, e.g., LM-CPA, 5.3-1: The PDC were selected based on a review of the Modular High Temperature Gas Reactor -Design Criteria (MHTGR-DC) identified in RG 1.232 against the RFDC and CDC identified per the NEI 18-04 process.... This review ensures that the intent of all MHTGR-DC, and by extension of the GDC from 10 CFR 50 Appendix A, are captured in the PDC.

14 10 C.F.R. § 50.34 (a)(8) and results in an admissible contention.49 But staff failed to recognize that the other deficiencies in the LM-CPA that Waterkeeper identified in Contention 1 stem directly from the omission of this information, and thus, the entire contention should be considered admissible.

At bottom, staff fails to address the fundamental dispute raised by Waterkeepers Contention 1: that the information in LM-CPAs PSAR is insufficient to demonstrate that LMs functional containment proposal satisfies NRCs regulatory requirements, and in particular, 10 C.F.R. § 50.34(a)(1)(ii)(D). That rule provides in relevant part:

The safety features that are to be engineered into the facility and those barriers that must be breached as a result of an accident before a release of radioactive material to the environment can occur. Special attention must be directed to plant design features intended to mitigate the radiological consequences of accidents. In performing this assessment, an applicant shall assume a fission product release from the core into the containment assuming that the facility is operated at the ultimate power level contemplated. The applicant shall perform an evaluation and analysis of the postulated fission product release, using the expected demonstrable containment leak rate and any fission product cleanup systems intended to mitigate the consequences of the accidents, together with applicable site characteristics, including site meteorology, to evaluate the offsite radiological consequences.

The LM-CPA relies on its proposed functional containment to satisfy this requirement.50 As discussed above, functional containment is not specifically referenced or defined in NRCs regulations. Thus, other than regulatory guidance, there are no specific regulatory standards that can be applied to test the LMs assertion that its proposed functional containment meets the regulatory requirements of 10 C.F.R. § 49 NRC Answer, p. 20.

50 LM-CPA, at 3.2.3-3.2.4.

15 50.34(a)(1)(ii)(D)and in particular, that a postulated fission product release to the environment from a major accident using the expected demonstrable containment leak rate will meet the dose criteria of 10 C.F.R. § 50.34(a)(1)(ii)(D)(1) and (2). This is the crux of Waterkeepers contention.

To determine the analogous fission product release to the environment from a major accident at the Xe-100, as required by 10 C.F.R. § 50.34(a)(1)(ii)(D), the release of radionuclides from the functional containment during such an accident must be determined. However, the terms from the core into the containment and expected demonstrable containment leak rate must be interpreted differently for a reactor with a functional containment than one with a physical containment. Nevertheless, any reinterpretation must be consistent with the plain meaning of the regulationto satisfy the safety objective of the regulatory requirement.

The mechanistic source terms proposed by LM represent radionuclide releases to the environment during accidents and can be seen as a convolution of the core-to-containment and containment leakage factors that would be developed separately for reactors with physical containments. However, this implies that the analogous expected demonstrable containment leak rate would be the expected demonstrable leak rate from the functional containmentthat is, the total radionuclide release to the environment as a function of time. Thus, the MST that is used for the analysis to satisfy this provision must be both expected and demonstrable.

The dispute then, as described in Waterkeepers contention, is whether the LM-CPA provides reasonable assurance that its MST is expected and demonstrable.

16 Waterkeeper maintains that the MST proposed by LM is neither expected nor demonstrable with the same level of assurance as the normal leakage from a physical containment structure. The normal leakage from a physical containment structure is both expectedthat is, can be estimated based on a wealth of experience from the operating fleet of reactorsand demonstrable in that it can be confirmed with monitoring and inspections to ensure that the maximum leak rate is not exceedede.g., 10 C.F.R. Part 50 Appendix J.

LME, however, has not proposed any analogous monitoring and inspection regime that would allow for determination and verification of the Xe-100 MSTs to the same level of assurance as the normal leakage from a physical containment structure. Such a regime, at a minimum, would require a detailed description of the fuel testing program that the NRC staff agrees was not provided in the LM-CPA, as well as a plan (also missing) to ensure that the fuel to be produced in the as-yet unlicensed and unbuilt TRISO-X fuel fabrication facility will meet the quality assurance standards that are assumed for the fuel in the LM-CPA.

Because the Xe-100 MSTs cannot be determined at this stage with reasonable assurance, the assessment of the adequacy of the design with a functional containment to meet the dose criteria in 10 C.F.R. § 50.34(a)(1)(ii)(D)(1) and (2) must be carried out with a postulated and sufficiently conservative deterministic source termone analogous to the 10 CFR § 50.34 footnote 3 description of a substantial meltdown of the core with subsequent release into the containment of appreciable quantities of fission products.

Given that the functional containment encompasses the fuel system and helium boundary

17 but not the reactor building, the clear analogue to this statement is a release into the reactor building of appreciable quantities of fission products. And given that the most limiting design-basis accidents are those involving a depressurized loss of forced cooling (DLOFC),

which as Waterkeeper points out, takes the core to a temperature regime outside of the current experimental database where severe fuel damage is possible, conservative release fractions corresponding to appreciable quantities of fission products could be determined by, for example, extrapolating to higher temperatures based on the figures in IAEA TECDOC-1545, Figures 47-48 (which showed fractional releases for noble gases and cesium exceeding 1 percent of the core inventory as temperatures increased beyond 1800°C).51 Similarly, the requirements of Rule 50.34(a)(4) cannot be satisfied without the information required by (a)(8). The information required by (a)(8) informs the evaluation required by (a)(4). Without it, LME cannot demonstrate that the SSCs are adequate, under (a)(4).

D.

Waterkeepers Contention provides the requisite information to determine the nature of the dispute.

Citing Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), CLI-89-3, 29 NRC 234, 240-41 (1989), LME argues that Waterkeepers Contention 1 is impermissibly vague.

According to LME, references to its proposed functional containment are not tied to any specific portion of the CPA.

51 Intl Atomic Energy Agency [IAEA], Characterization and Testing of Materials for Nuclear Reactors:

Proceedings of a Technical Meeting Held in Vienna, May 29-June 2, 2006, IAEA-TECDOC-1545 (March 2007).

18 In Seabrook, the petitioner incorporated by reference a multitude of documents in support of a contention that the applicant submitted conflicting figures for spent fuel costs.

Yet, those conflicting figures were not in the documents provided by the petitioner. Id.

Waterkeepers Contention specifically discussed the functional containment concept in relation to the requirements of Rule 50.34, which addresses PSARs. The PSAR in LMEs CPA discusses the functional containment design in relation to the PDCs.52 Moreover, the PSAR explains that 10 CFR 50.34 provides the dose requirements for safety-related SSCs and establishes that the safety features which will be relied upon for containment of radioactive material must be evaluated.53 A comparison of Waterkeepers Contention 1 with the PSAR reveals the specific parts of the application Waterkeeper was referencing in its Contention 1.

Similarly, Dr. Lymans Declaration cites to relevant regulations, the MST Topical Report, and the PSAR. Waterkeepers Contention and Dr. Lymans Declaration are simply not comparable to the situation in the Seabrook case. Waterkeepers Contention included the requisite citations to the information it was relying on.

E.

The deficiencies and omissions identified in Waterkeepers Contention 1 are relevant to the Construction Permit and should not be delayed until the operational license.

LME argues that Waterkeeper has conflated the requirements for Construction Permits and Operating Licenses (OL), in that the regulations do not require the level of assurance for the accident analysis in the PSAR that Waterkeeper is arguing is necessary.

52 LM-CPA, p. 5.3-5.

53 LM-CPA, p. 5.1-1.

19 However, LME again misses the point of the contention that the so-called functional containment is a safety feature or component which require(s) research and development and thus, according to 10 C.F.R. § 50.35(a)(3), the application requires identification of a research and development program reasonably designed to resolve any safety questions associated with such features or components satisfactorily at or before the latest date stated in the application for completion of construction. Waterkeeper contends that the application does not meet this requirement, and thus, the NRC cannot make an affirmative finding under this provision of the regulations.

Waterkeeper stresses that the containment for any reactor is a safety feature of unique importance and whose performance is called out specifically in 10 C.F.R. § 50.34(a)(1)(ii)(D) and the associated footnote 3. Moreover, a decision at the CP stage to employ a functional containment in lieu of a physical containment will be extremely difficult, if not impossible, to reverse should subsequent testing invalidate the preliminary safety analyses cited in the PSAR. As Waterkeepers petition points out, the likelihood that the NRC would require construction of a physical containment after approving a CP without a physical containmentno matter what the results of a subsequent testing program indicateis very low.

Thus, with regard to the functional containment determination, the quality of the associated safety analyses supplied at the CP stage should be held to a uniquely high standard. Also, the safety performance of the functional containment, and the question of whether or not it can satisfy regulatory requirements, depends to a high degree on information that may not be available until the OL application is submitted or later. So, in

20 the case of the functional containment determination, this presents a unique case that warrants full development of the safety analysis before proceeding to the OL application.

F.

A partial exemption would present an undue safety risk.

As explained in Waterkeepers Contention, an exemption would present an undue risk to public health and safety.54 This is because LME is attempting to justify the adequacy of the functional containment to meet the offsite dose criteria by using, in lieu of a postulated fission product release consistent with 10 CFR 50.34(a)((ii)(D) footnote 3, a mechanistic source term that has not been determined with a high degree of certainty.

For the reasons described above, Contention 1 is admissible in its entirety.

III.

Waterkeeper withdraws Contention 2.

IV.

Contention 3 is admissible.

Contention 3 questions whether LME has sufficiently demonstrated its financial qualifications. Waterkeeper argues that LME has not provided sufficient evidence that LME meets the financial qualification standards of Part 50 or Part 70.55 Part, but not all, of Waterkeepers argument is based on LMEs description of its funding sources, which Staff correctly recognizes is admissible.56 Waterkeeper additionally argues that LME has not provided sufficient evidence for Part 70 to even apply, because LME has not demonstrated that it meets the standard for an exemption from Part 50 under 10 C.F.R. § 50.12.57 54 10 C.F.R. § 50.12.

55 Petition, pp. 26-33; id. pp. 41-43.

56 See NRC Answer, p. 27-30; Petition, pp. 28-33; id. pp. 41-43.

57 Petition, pp. 34-41. Staff states that its review of the exemption request is on-going; Waterkeeper reserves the right to address additional arguments as new information is made available.

21 A.

LMEs submittals do not meet the standard of 10 C.F.R. § 50.33(f) and Part 50 Appendix C.

Without a valid exemption under 10 C.F.R. § 50.12, LMEs application is held to the standard of 10 C.F.R. § 50.33(f) and Part 50 Appendix C. As NRC Staff, Waterkeeper, and LME acknowledge, LMEs current submittals do not meet this standard.58 Part 50 sets specific substantive standards for demonstrating financial qualification, including for newly-formed entities, like LME, and entities that will rely on funding from their parent company, like LME. Without substantial evidence to support each required element (one of which is that the applicant must indicate the source of funds to cover all estimated construction costs and related fuel cycle costs),59 LME cannot make a financial qualification showing under Part 50.60 As Staff correctly recognizes, one admissible issue (relevant to both Part 50 and Part 70 standards) is LMEs representation of its sources of fundingspecifically the accuracy of whether LMEs representation that ARDP funding will cover 50% of its costs.61 The Commission should clarify that this admissible contention includes in its scope the extent and reliability of funding from Dow (which LME relies on to support its qualifications62),

58 LME Answer, p. 59 (PDF p. 64); Petition, pp. 27-29; NRC Answer, p. 25.

59 10 C.F.R. § 50.33(f)(1). Meanwhile, LME asserts only that it has funds to cover 50 percent of its costs.

60 See New England Coal. on Nuclear Pollution v. U. S. Nuclear Regul. Commn, 582 F.2d 87, 93 & 93 n.9 (1st Cir. 1978) (reviewing a financial-qualification finding under the substantial evidence standard).

61 NRC Answer, pp. 27-30 (indicating admissibility of this as a contention). Indeed, since the Application was filed, a new study suggests that the cost is likely to exceed even current predictions. See Kim, Philseo

& Macfarlane, Allison, Challenges of small modular reactors: A comprehensive exploration of economic and waste uncertainties associated with U.S. small modular reactor designs at 12 (2026).

62 Petition, p. 29 (citing LM-CPA Part I-IX (PDF p. 10)).

22 and which Waterkeeper also questioned in its Petition63 and Staff noted is relevant to the ARDP funding question as well.64 The fact that additional financial information may have been available as SUNSI data does not alter the fact that Waterkeeper has met the standard for an admissible contention related to LMEs representation of its funding sources. Waterkeepers concerns about these funding sources are based on public statements by X-Energy (the designer of the Xe-100) or by DOE, and LME does not challenge these statements or Waterkeepers analysis as inherently incorrect. Nor does LME dispute that the ARDP funding is for reimbursable costs only, nor is the scope reimbursement likely to be SUNSI information.65 These facts in the public record show a genuine dispute exists as to the amount of funding available for the construction of the LMGS, which is relevant to LMEs ability to show its financial qualifications under both Part 50 and Part 70.

B.

LME does not qualify for an exemption from this standard.

LME has not met the standard necessary to qualify for an exemption from Part 50 under 10 C.F.R. § 50.12(a). The review of exemptions is case-by-case for each application, and thus LMEs application must sufficiently justify why in its case it warrants an exemption. LME seeks an exemption under special circumstance (ii) and (vi) and in either 63 See Petition, p. 30 (Without the details of the [intercompany] agreement, it is unclear the amount of financial support TDCC may provide, conditions precedent to the provision of that support, and all other details that would be pertinent to establishing that LME has the requisite financial qualifications.).

64 NRC Answer, p. 29.

65 Petition, p. 33 (citing Exhibit J, U.S. Government Accountability Office, NUCLEAR ENERGY PROJECTS: DOE Should Institutionalize Oversight Plans for Demonstrations of New Reactor Types, September 2022, https://www.gao.gov/assets/gao-22-105394.pdf); Exhibit J at 14-15 ([A]ccording to the ARDP Funding Opportunity Announcement, awardees must submit invoices to DOE before being reimbursed for allowable project costs.).

23 instance must also demonstrate that lowering the standard for financial qualification would not present an undue risk to public health and safety. NRC Staff indicates that its review of the exemption is on-going, and as such Waterkeeper reserves the right to supplement its arguments in the event the exemption is granted or additional information is provided.

Furthermore, as the Petition explains, LME relies heavily on bootstrapping the rationale found in a disapproved draft proposed rule to support its exemption request, but no final rule has been proposed altering LMEs responsibility to meet the requirements of 10 C.F.R. § 50.12(a). It is still unclear how and if proposed Part 53 will alter the standard for financial qualification and whether in fact such a hypothetical standard will apply to the Part 50 regulations under which LME applied and under which the CPA is to be reviewed.66 C.

Even if LME qualified for an exemption, it does not meet the 10 C.F.R.

§ 70.23(a)(5) standard that it seeks to apply.

Contrary to LMEs reading of the Petition,67 Waterkeepers Contention 3 does in fact argue that even if LME is judged by the standard in 10 C.F.R. § 70.23(a)(5), it fails to meet its burden.68 10 C.F.R. § 70.23(a)(5) requires a finding that that the applicant appears to be financially qualified to engage in the proposed activities [i.e., construct a nuclear facility] in accordance with the regulations in this part. That finding must be supported by evidence, which the CPA fails to provide, as Waterkeepers Petition points out.

66 The Commissions 2022 Staff Requirements Memorandum (cited at Petition, p. 39 n.93) also indicates that not all categories of merchant reactors would be subject to the same financial qualification standards.

67 LME Answer, p. 71 (PDF p. 76).

68 Petition, pp. 41-43.

24 In arguing that it has met the Part 70 standard, LME relies heavily on the 2016 Regulatory Basis Document that was not finalized.69 Specifically, LME relies on this never-finalized standard to argue that if it identifies 50% of its funding, its obligations under 10 C.F.R. § 70.23(a)(5) are satisfied.70 But that 50% threshold simply has not been adopted, nor has LME demonstrated that it complies with it here. LMEs attempts to favorably analogize to the South Texas Project (STP)s application for a Part 52 license are inapposite for the reasons stated in the Petition,71 including that the STP decision was granted while a rule change to adopt a Part 70-like standard in Part 52 (i.e., the Part under which STP was applying) was under consideration. The rulemaking for Part 53 is not final, does not adopt the prior Regulatory Basis Document, nor is clear to be applicable to facilities like the LMGS.72 Likewise, LMEs argument that it need not propose license conditions is based on the same draft Regulatory Basis Document.73 And contrary to LMEs portrayal of the Petition, Waterkeeper argued that license conditions could have been proposed that might have remedied the flaws in LMEs arguments (as was done in the STP, PFS, and LES cases, all of which were decided under a Part 70 standard), but it did not. And in all of those cases, 69 LME Answer, p. 64 (PDF p. 69).

70 LME Answer, p. 68 n.265 (PDF p. 73).

71 As the Petition explains, the STP case does illustrate that the level of documentation LME has provided is significantly less robust than what the Commission accepted in STP. The fact that STP sought a combined construction and operation license is inapposite; the documentation for construction provided by STP still surmounts what LME has provided. Petition, p. 37.

72 And as is, the Atomic Energy Act and the regulations promulgated to implement it continue to distinguish between different types of facilities where nuclear materials are present: licenses for production and utilization facilities, such as nuclear power reactors (under Part 50); and licenses to receive title to, own, acquire, deliver, receive, possess, use, and transfer special nuclear material (under Part 70). This is not a Part 70 application.

73 LME Answer, pp. 74-75 (PDF pp. 79-80).

25 the applicants submitted more detailed documentation, had more qualifications, or were applying for safer, nonreactor projects.74 And contrary to LMEs claims, the information LME provides related to its and Dows financial capacity is insufficient to meet even LMEs interpretation of what suffices for appear[ing] to be financially qualified to engage in the proposed activities.75 In the CPA, LME relies on the draft Regulatory Basis Document to state that:

The Part 70 appears to be financially qualified standard merely requires applicants to demonstrate financial capacity, which:

is not a predictive finding of the likelihood of an applicant ultimately obtaining financing. Rather, it reflects the applicants level of understanding of the size and scope of the project, including the level of capital necessary to undertake the project, and it reflects the organizational and human resources, experience, skills, and expertise required to obtain proper financing and ultimately finance the project, when appropriate.76 Even this standard requires actual evidence as to the applicants level of understanding of the size and scope of the project, and the organizational and human resources, experience, skills, and expertise required to obtain proper financing.

And as the Petition explains, here much of what LME relies on is not evidence. For example, LME describes its relationship with Dow as one in which Dow will provide financial construction support, but does not explain how much, or under what conditions 74 See Petition pp. 36-37 & 42-43 (describing cases).

75 10 C.F.R. § 70.23(a)(5).

76 LME Answer, p. 71 (PDF p. 76).

26 such support would be provided.77 Nor does LMEs relationship to Dow as a subsidiary remedy this; such relationship is no guarantee of support.78 Moreover, given that the project is construction of a nuclear facility, LMEs experience (or lack thereof) in nuclear facility construction could be relevant (but is of course not the only factor). In its Answer, LME points to Dows work on a research reactor that was constructed in the 1960s. In addition to the fact that it is virtually certain that no one involved with the construction of that facility is still with Dow today (or would provide support to LME), this reactor is a class of reactor that produces only 0.3 MW thermal power, which is about 1/700th of the power of one Xe-100 reactor, among many other distinguishing characteristics.79 This additional information does not surmount the problems with LMEs Application and its inability to demonstrate that it meets Part 50 or Part 70 financial qualification standards.

In sum, LME must show it is financially qualified to construct the LMGS, yet genuine issues of dispute exist as to the sufficiency and accuracy of LMEs Application related to this issue, and as such the Commission should admit Waterkeepers Contention 3 in full.

V.

Contention 4 is admissible.

77 Petition, p. 39.

78 And although Part 70 is silent on this, Part 50 explains how subsidiaries that rely on parent funding are expected to provide the same kind and scope of documentation for their parent companies, as well as agreements between these companies. Requiring this sort of detail from applicants is unrelated to any rationale for holding non-utility applicants to a lower standard for financial qualification.

79 See the Dow Chemical Company; Docket No. 50-264; Facility Operating License No. R-108 § 1.B at 1, 3, https://www.nrc.gov/docs/ML1413/ML14136A087.pdf. As for the Dow megaprojects LME cites in its Application for support, it is unclear whether the construction costs for these projects approached the expected costs for this facility; the Application and LMEs Answer do not disambiguate whether the costs are for construction, operation, or include other factors. See LME Answer, p. 73.

27 Waterkeepers Contention 4 raises problems with LMEs Environmental Report, including its reliance on the PSAR and flaws that it contains. Staff and LME appear to misunderstand one of the key flaws with the CPA that Waterkeeper raises, which is the fact that even if the PSAR need not include certain climate-change analyses (which it should80),

the ER must include them if it is to be a valid basis for conducting a NEPA analysis.81 A.

The ER is flawed as a basis for satisfying NEPA because it does not address the reasonably foreseeable impacts of climate change that are omitted from the PSAR.

The requirements of the National Environmental Policy Act (NEPA) must be satisfied before the requested construction permit may issue,82 and an applicants Environmental Report typically serves as the foundation for a NEPA analysis for these permits. NEPA requires the evaluation and presentation of anticipated direct, indirect, and cumulative impacts from the project, which includes impacts related to climate change.

Crucially, the analysis required by NEPA with respect to climate change is broader than the analysis that was conducted in the PSAR, which focuses on whether the facility as designed can withstand a variety of accident scenarios from internal and external threats 80 This is not simply Waterkeepers view, but the GAOs, that incorporating climate change analyses into safety reviews is necessary to fully address hazards. See Mitman Decl. ¶ 13.

81 Petition, pp. 48-51 ([T]he Environmental Report gives no signs of incorporating the[] sorts of reasonably foreseeable environmental impacts from climate change on the facility that would increase the risk to the plant and the human environment around it... [A] NEPA violation is threatened when these errors are incorporated into the Environmental Report without being addressed because the NEPA analysis will be built off of the information in the ER... Reasonably foreseeable environmental impacts include the effects of climate change... [A]s drafted, the ER and PSAR do not reflect a complete or adequately rigorous evaluation of all external hazards, do not consider uncertainties, and do not address the reasonably foreseeable effects of climate change on the risks of accidents).

82 Even where the NRC purports to have resolved safety issues through its Atomic Energy Act-based regulatory process, it must nevertheless comply with NEPAs procedural obligations for addressing those issues in its decision-making processes. Limerick Ecology Action, Inc. v. U.S. Nuclear Regul. Commn, 869 F.2d 719, 729-31 (3d Cir. 1989).

28 (and includes anticipated operational occurrences, design basis events, beyond design basis events, and design basis accidents). But for all of these scenarios, the PSAR does not assess whether the facility as constructed will be able to withstand almost all of the reasonably foreseeable effects of climate change, which will increase the severity, intensity, and frequency of storms and other climate-change exacerbated conditions.83 Thus, a NEPA analysis based on safety conclusions from the PSAR alone is insufficient because the PSAR does not go as far as NEPA requires in assessing impacts from climate change.

Yet that is what LME in essence has proposed by submitting an Environmental Report that simply incorporates the findings of the PSAR without conducting further analysis of how climate change will worsen the consequences of accidents and other safety events from a facility not designed to withstand climate change-exacerbated storms for the surrounding community and environment.84 At best, the ER is limited to a review of the LMGSs impacts on climate change,85 instead of also considering the impacts of climate change on the plant itself (and any subsequent impact on surrounding communities because the plant was not designed to withstand climate change hazards). And as Staff points out in its Answer, it is already working on an environmental assessment based on the ER, 83 Predicted sea level rise is incorporated in the PSAR, as the Petition acknowledges, but every other climate change-induced risk is not. See Mitman Decl. ¶¶ 14-15.

84 See New York v. Nuclear Regul. Commn, 681 F.3d 471, 478 (D.C. Cir. 2012) (Under NEPA, an agency must look at both the probabilities of potentially harmful events and the consequences if those events come to pass.) (emphasis added).

85 ER at 7.2-20; 10.6 10.6-2 (describing LMGSs impact on climate change); id. at 2.7 2.7.12 (describing how climate change will exacerbate extreme weather events, sea level, and temperature without analyzing the consequences of these changes for the project). See also In the Matter of Virginia Elec. &

Power Co. (N. Anna Power Station, Units 1 & 2), No. 24-984-02-SLR-BD01, 2024 WL 5712432, at *18 (N.C.M.E.C.H.L.I.E.N. July 10, 2024) (Gibson, J., dissenting) (faulting the draft EIS because even though it mentioned climate change, [i]t says nothing else of consequence with respect to how these events will impact [the facility] itself).

29 despite the fact that LME has not submitted additional analyses that would cover the climate change-induced risks that the PSAR omits.86 Mr. Mitmans declaration even includes a specific example of one such climate-change risk not addressed in the PSAR or ERa storm that drops additional water on a dam in a saturated watershed such that the additional precipitation causes the dam to overtop.87 The PSAR does not address such a scenario; dam failure analysis in the PSAR assumes a sunny-day failure with a minimal amount of water stored behind the dam and a not-fully-saturated watershed.88 And the ER does not add in such a scenario, even though this risk is reasonably foreseeablethis scenario envisions a straight-forward extension of historic storms: a large Hurricane Harvey-type storm89 making landfall near the facility, as Hurricane Beryl did (neither of which were included as historic events in the PSAR).90 This is not a worst-case scenario,91 but a reasonably foreseeable scenario that neither the 86 This is analogous to the practice rejected by the D.C. Circuit which rejected a NEPA analysis that wrote off harms from reactor leaks by relying on the fact that past leaks had negligible effects. See New York v.

Nuclear Regul. Commn, 681 F.3d 471, 481 (D.C. Cir. 2012). A proper analysis would have looked forward to examine how circumstances in the ensuing decades would alter the risks from these leaks. Id. Similarly here, an environmental analysis must actually concern itself with the realities that climate change will increase the threats to surrounding communities because the LMGS is not designed to withstand impacts from climate change.

87 Mitman Decl. ¶¶ 29-32.

88 Mitman Decl. ¶ 31.

89 In its report on how NRCs actions to address risks from natural hazards do not fully consider potential climate change effects, GAO recognizes that climate change caused Hurricane Harveys rainfall to be an estimated 15 and 20 percent heavier than it would have been without human-caused warming. Petition Exhibit F-3, GAO Report (NRC Should Take Actions to Fully Consider the Potential Effects of Climate Change) at Highlights & 13 n.21 (April 2024).

90 Mitman Decl. ¶ 21. LMEs Answer confirms that these storms and others were omitted from the PSARs analysis, which as the Petition explains, is a relevant omission in its own right. LME Answer, p. 85 (PDF

p. 90); Petition, p. 47 (citing Mitman Decl. ¶¶ 20-21).

91 A dam overtopping, as is proposed in Mr. Mitmans scenario, is a commonly understood dam failure mechanism, not a worst-case or unreasonable scenario as LME would paint it. For example, as the US Bureau of Reclamation highlights it: Overtopping flow is a component event of many or even most potential failure modes (PFM) resulting from floods. Dams and levees have been overtopped by a few

30 PSAR nor ER address.92 Staffs Answer overlooks this part of Contention 4, that the ER omits necessary climate change-related analyses, but Waterkeepers Petition states an admissible contention on this ground.93 Furthermore, the fact that the PSAR contains additional, non-climate-related flaws and omissions94 only further solidifies the fact that the ER (which, again, does not address these flaws and omissions) is based on an incomplete risk analysis and is inadequate.

B.

Embankments, Flooding, and Outdated Plant Design.

Staff opposes the inclusion of the portion of Waterkeepers contention related to embankment failures, pointing out a statement in the PSAR that Waterkeeper inadvertently overlooked.95 But even though LME states that in the PSAR it has assumed that the embankments fail,96 it is not a fully conservative approach because the PSAR does not take into consideration how climate change-exacerbated weather events could significantly inches to more than a foot without breaching, but other structures have failed quickly. Overtopping is a failure mode of concern since Costa (1985) reported that of all dam failures as of 1985, 34 percent were caused by overtopping[.]

See

USBR, Dam Safety Risk Management, https://www.usbr.gov/damsafety/risk/BestPractices/Chapters/D3-FloodOvertoppingFailureOfDamsAndLevees.pdf.

92 LMEs failure to consider such an event is similar to the flaws that Judge Gibson would have found sufficient to support the admission of a contention of omission related to the necessity of including impacts of climate change in the environmental documents. See In the Matter of Virginia Elec. & Power Co. (N.

Anna Power Station, Units 1 & 2), No. 24-984-02-SLR-BD01, 2024 WL 5712432, at *17 (N.C.M.E.C.H.L.I.E.N. July 10, 2024) (Gibson, J., dissenting) (faulting the draft EIS because it does not reflect a complete or adequately rigorous evaluation of all external hazards, does not consider uncertainties and does not address the reasonably foreseeable effects of climate change on the risks of accidents at North Anna and thus the NRC cannot claim to have a reasonable basis for concluding that the environmental impacts of accidents during a license renewal term are SMALL.). In that case, Mr. Mitman also identified a specific accident risk, i.e., climate change-induced local intense precipitation could cause flooding of the facilitys turbine building. Id.

93 See NRC Answer, pp. 32-33 (focusing on flaws in the PSAR, not the ER).

94 See Petition, p. 46 (incorporating the flaws in the PSAR identified by Dr. Lymans declaration); p. 47 (incorporating the flaws and omissions identified in Mr. Mitmans declaration).

95 NRC Answer, p. 35.

96 PSAR at 2.4-161.

31 increase the quantity of water in the basins, leading to a larger (and still unaddressed) impact on safety-related equipment. Even if these climate change impacts are not addressed in the PSAR, it is error to omit a consideration of these impacts in the ER or in the NEPA assessment.

Furthermore, these embankment failure analyses appear to have been performed based on a prior configuration of the safety-related structures.97 Staff appears to have overlooked this portion of Waterkeepers contention that highlights how at least some portions of the PSAR (and thus the ER) are based on outdated information about the proposed site layout and location.98 As Mr. Mitman explained:

[T]he application indicates that safety structures were moved, and that the PSAR is based on outdated information. For instance, the PSAR states:

As a result of the relocation of the plant structures on the subject site, the data presented in Section 2.5.4.3 is based on available data from the prior locations of the structures.

Id. at page 2.5-219. Similarly, the PSAR states:

Due to a revised layout of the LMGS site, the data presented in this section is based on information from a previous location.

The updated plant layout involves consolidating the safety-related structures and their relocation approximately 750 ft (228.6 m) in a westward direction.

Id. at page 2.5-245 (emphasis added). Moving the SR structures location potentially impacts those SR SSCs and their ability to adequately cope with weather-related external events (a discussion of those events is below). And because the LM-CPA lacks any description of how the plant design changed during the consolidat[ion of] the safety-related structures I am unable to 97 See Mitman Decl. ¶ 19 (highlighting PSAR at 2.5-245, which states that the data in the section pertaining to dynamic and static stability of slopes and embankments is based on information from a previous location and a prior site layout).

98 Petition, p. 47 (citing Mitman Decl. ¶ 19).

32 fully understand what LME is currently planning to construct. These deficiencies bring into question the adequacy of the safety analysis, the associated risk analysis, and consequentially the environmental analysis.99 At a minimum, the omission of analyses based on the updated plant design and location supports an admissible contention of omission.100 Waterkeeper further reserves the right to address these issues as additional information becomes available.

LME also critiques Waterkeepers concerns about LMEs use of the HMR reports and LMEs surge and seiche flooding calculations.101 First, Waterkeepers concerns about the HMR reports are echoed by the technical community, which recognizes that these methods for calculating probable maximum precipitation and local intense precipitation have limitations that do not fully capture the risks posed by climate change to these facilities.102 Second, Waterkeeper cites two sources that show a fundamental input into LMEs surge calculations (sea level rise) is too low.103 This is a quintessential dispute over a fact material to the licensing of the LMGS, whether the facility and its surroundings will be safe from flood risks.104 C.

Seismic Risk 99 Mitman Decl. ¶ 19.

100 It is simply not reasonable for LME to fault Waterkeeper for not being able to precisely identify how this redesign impacts plant safety; LME has not disclosed the details of the redesign. Moreover, it is the applicants responsibility to demonstrate that the facility is safe as designed, and these statements in the PSAR show that the PSARs conclusions are not based on the current facility design.

101 LME Answer, pp. 85 & 87 (PDF pp. 90 & 92).

102 Natl Acads. of Scis., Engg, and Med., Modernizing Probable Maximum Precipitation Estimation at (2024), https://doi.org/10.17226/27460.

103 Mitman Decl. ¶¶ 26-27.

104 Again, the omissions in the application necessarily make it unreasonable for Waterkeeper to be able to identify the full impact of these underestimates.

33 Waterkeepers Petition also contended that the ER omitted, without basis, an evaluation of seismic risk.105 After the Petition was filed, LME supplemented the Environmental Report, stating 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.106 LME then proceeded to replace one design basis accident (DBA) with another, replacing the large helium pressure boundary depressurization scenario with the seismic event DBA.107 But this was no simple correction of an editorial error: in replacing one design basis accident with another, the total dose increases by more than a factor of 20, i.e., 20 times more than that previously reported in the ER.108 LMEs ER omits an explanation as to why this magnitude of dose increase is acceptable or how it impacts the rest of the conclusions in the application.109 And the Supplement still only 105 Petition, p. 48; Mitman Decl. ¶¶ 34-36.

106 Cover Letter Re: Supplement #1 to the Environmental Report for the Long Mott Generating Station Construction Permit Application, https://www.nrc.gov/docs/ML2524/ML25241A352.pdf.

107 ER Supplement #1, at Table 5.13.1-12, https://www.nrc.gov/docs/ML2524/ML25241A353.pdf.

108 ER Supplement #1, at Table 5.13.1-12, https://www.nrc.gov/docs/ML2524/ML25241A353.pdf. The calculated factor of twenty increase is based on comparing the sum of the nine evaluated DBA sequences in Table 5.13.1-12 from the ER submitted in March 2025 (totaling 3.55E+02 mrem) with the sum of the same table submitted as a supplement to the ER on August 29, 2025 (totaling 7.97E+03 mrem). I.e.,

7.97E+03 divided by 3.55E+02 = 22.5 (a factor of increase greater than 20).

109 Even if the outcome of such a dose increase is ultimately found to be within safe limits, such a large, overlooked increase cannot help but cast doubt on the accuracy of the other calculations in the Application.

Additionally concerning, LME continues to mischaracterize the relative risks of this facility, e.g., glossing over differences between the historical studies and what LME included in calculating total dose risk, Mitman Decl. ¶ 37; and incorrectly asserting that [t]he LMGS dose-risk value in the ER is already based on a bounding severe accident. LME Answer, pp. 91-92 (PDF pp. 96-97). This value is not based on a bounding severe accident: First, the accident risk in the ER is based on the total analyzed accident risk and not a single severe accident. Second, the total is not bounding as the ER states because it does not completely include external events, internal fires nor shutdown risks (PSAR Section 3.1.1.2). The excluded risks, when included, can only increase the currently estimate risk values. Thus, the currently calculated risk values are not bounding. Furthermore, such inaccurate statements by LME have the potential to mislead regulators and the public about the safety of the proposed facility, which, inter alia, contradicts one of the fundamental purpose of NEPA of transparency in decision-making.

34 discusses the non-seismic doses as factors when it concludes that the impact of a release on the environment would be SMALL, even though it now is apparent that seismic events are relevant.110 As such, Waterkeepers contention should not be treated as moot because LMEs Supplement does not assess address how the conclusions in the ER change now that the total dose has increased by a factor of 20.

D.

Flood Levels and Other Missing Data This new jump in dose also belies LMEs assurances that the other data that is incomplete or missing from the ER will not change its conclusions as to the severity of impacts. For example, Staff correctly recognized that an admissible contention of omission exists with respect to the flood level information in Table 2.0-1, which is incomplete.111 And even if this flood level information is supplemented, there is no indication in the ER that the supplemental data and analyses will include how climate change will exacerbate risks from these flood levels.

But this is only one of the instances of omitted data in the PSAR and ERthe PSAR contains dozens of references to the need to incorporate additional data that is incomplete, missing, or based on a previous site design and location.112 This includes omitted data on 110 See ER Supplement #1 at 5.13 - 3, section 5.13.1.3.

111 NRC Answer, pp. 36-37. Waterkeeper appreciates that Staff overlooked the inadvertent typographical error in Paragraph 18 of Mr. Mitmans Declaration, which initially cited footnote 3 of Table 2.0-1 with respect to omitted flood level data, but as is clear from the remainder of the paragraph, was intended to cite footnote 2 instead.

112 See, e.g., PSAR at 2.0 2.0-4 (Table 2.0-1) (groundwater; flooding, including cumulative flood effects; site stability, including liquefaction, settlement, shear wave velocity); id. at 2.4 2.4-50 (2.4.2.2)

(wind setup and wave-run up, including as combined with dam failure results and storm surge predictions);

id. at 2.4-76 (2.4.3) (probable maximum flood on streams and rivers); id. at 2.4-158 (2.4.4) (impacts from potential dam failures); id. at 2.4-198 (2.4.5.2.2) (storm surge analysis, including impacts from wave action (2.4.5.4) and wave run-up (2.4.5.5)); id. at 2.4-203 (2.4.5.2.2.6) (refined PMSS analysis; ADCIRC results);

id. at 2.4-315 (2.4.10) (flood protection); id. at 2.4-317 (2.4.12) (site-specific groundwater data and

35 flooding, storm surge, impacts from dam failures, earthquakes, hydrogeological and geotechnical information, surface faulting data, and the stability of the subsurface and foundation, including safety-related systems. The lack of this data makes it impossible to conduct a thorough, complete and accurate safety evaluation. In addition, the absence of complete data and analyses in these categories frustrates Waterkeepers ability to assess the adequacy of the conclusions in the CPA for these issues, and Waterkeeper reserves the right to address these issues as additional data becomes available.

E.

Storage of Spent Fuel Staff correctly recognized that the portion of Waterkeepers Contention 4 that applies to spent fuel storage raises an admissible contention of omission.113 As Staff recognizes, LME was required to include an evaluation of the effects of continued storage after the operating life of the reactor in its ER. The Continued Storage GEIS, on which LME relies, does not consider reactors like LMEs proposed reactor, therefore it cannot provide a technical basis for incorporating the analysis of the effects of continued storage models); id. at 2.4-322 (2.4.12.1.4) (site-specific hydrogeology); id. at 2.4-334 (2.4.12.2.4.1)

(hydrogeological parameters: essential for modeling a liquid effluent release (2.4.12.3); id. at 2.4-336 (2.4.12.2.4.2) (geotechnical parameters); id. at 2.4-341 (2.4.12.3.1.2.1) (description of hydro-lithologic units); id. at 2.5-2 (2.5.1) (missing site-specific geological and seismological information); id. at 2.5-67 (2.5.2) (vibratory ground motion); id. at 2.5-93 (2.5.2.5) (site seismic wave transmission characteristics);

id. at 2.5-100 (2.5.2.6) (ground motion site response analyses); id. at 2.5-182 (2.5.3) (surface faulting data);

id. at 2.5-211 (2.5.4) (stability of subsurface materials and foundation); id. at 2.5-212 (2.5.4.2.1) (subsurface analysis); id. at 2.5-218 (2.5.4.2.1.12) (Stratum XII); id. at 2.5-218 (2.5.4.2.1.13) (Stratum XIII); id. at 2.5-219 (2.5.4.2.2) (dynamic properties of soils); id. at 2.5-219 (2.5.4.3) (foundation interfaces); id. at 2.5-220 (2.5.4.4) (geophysical survey data); id. at 2.5-220 (2.5.4.5) (field and lab data from below the safety-related structures); id. at 2.5-221 (2.5.4.6) (groundwater conditions); id. at 2.5-221 (2.5.4.7) (response of soil and rock to dynamic loading); id. at 2.5-221 (2.5.4.8) (analyses and methods related to shear wave velocity, CPT, and lab data; soil liquefication); id. at 2.5-222 (2.5.4.9) (earthquake design basis); id. at 2.5-222 (2.5.4.10) (static and dynamic stability); id. at 2.5-223 (2.5.4.10.2) (foundations); id. at 2.5-245 (2.5.5)

(slope stability).

113 NRC Answer, pp. 37-42.

36 after the operating life of LMEs proposed reactor.114 In its Answer, LME cites to five pages in the ER that it purports are a sufficient discussion of spent fuel storage, but Staffs Answer clearly considered that part of the ER and rightfully found it lacking.115 VI.

CONCLUSION For the foregoing reasons, Waterkeepers Petition to Intervene and Request for Hearing should be granted.

Date: September 12, 2025 Respectfully submitted, Signed (electronically) by Marisa Perales Marisa Perales Texas Bar No. 24002750 marisa@txenvirolaw.com Claire Krebs Texas Bar No. 24105341 krebs@txenvirolaw.com PERALES, ALLMON & ICE, P.C.

1206 San Antonio St.

Austin, Texas 78701 512-469-6000 (t) l 512-482-9346 (f)

Counsel for San Antonio Bay Estuarine Waterkeeper 114 Furthermore, new evidence suggests that the amount of spent waste generated from Xe-100 models in particular will be much higher than other SMRs, making it all the more relevant that a facility-specific analysis be conducted. See Kim, Philseo & Macfarlane, Allison, Challenges of small modular reactors: A comprehensive exploration of economic and waste uncertainties associated with U.S. small modular reactor designs at 12 (2026).

115 Compare LME Answer, p. 93 (PDF p. 98) nn.362 & 367 (citing ER at 5.7-7 to 5.7-9 and 5.7-12 to 5.7-

13) with NRC Answer, p. 41 n.187 (citing ER at 5.7-8, 5.7-9, 5.7-13). The discussion is also lacking because it does not evaluate the risks and consequences from spent fuel storage plans that do not consider fully the effects of climate change.

37 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of:

Long Mott Energy, LLC (Long Mott Generating Station)

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§

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§ Docket No. 50-614-CP September 12, 2025 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I hereby certify that, on September 12, 2025, copies of the foregoing San Antonio Bay Estuarine Waterkeepers Reply in Support of Petition to Intervene and Request for Hearing were served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned docket.

Signed (electronically) by Marisa Perales Marisa Perales Texas Bar No. 24002750 marisa@txenvirolaw.com PERALES, ALLMON & ICE, P.C.

1206 San Antonio St.

Austin, Texas 78701 512-469-6000 (t) l 512-482-9346 (f)

Counsel for San Antonio Bay Estuarine Waterkeeper