ML25265A239
| ML25265A239 | |
| Person / Time | |
|---|---|
| Site: | 05000614 |
| Issue date: | 09/22/2025 |
| From: | Lighty R, Polonsky A Long Mott Energy, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 57487, ASLBP 25-991-01-CP-BD01, 50-614-CP | |
| Download: ML25265A239 (0) | |
Text
1 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 September 22, 2025 LONG MOTT ENERGY LLCS MOTION TO STRIKE PORTIONS OF SAN ANTONIO BAY ESTUARINE WATERKEEPERS SEPTEMBER 12, 2025 REPLY I.
INTRODUCTION Pursuant to 10 C.F.R. § 2.323(a), and the Atomic Safety and Licensing Boards (Board) Initial Prehearing Order,1 Long Mott Energy, LLC (LME) moves to strike two limited portions of the reply pleading (Reply) filed on September 12, 2025, by San Antonio Bay Estuarine Waterkeeper (Waterkeeper).2 Waterkeepers Reply was filed in support of its August 11, 2025 Petition to Intervene and Hearing Request (Petition),3 and as a consolidated response to the answers to the Petition filed on September 5, 2025, by LME and the U.S. Nuclear Regulatory Commission (NRC) Staff.4 As explained below, the two portions of the Reply exceed the permissible scope of reply pleadings under 10 C.F.R. Part 2 and present untimely supplements to and expansions of the claims raised in the Petition.
1 Licensing Board Memorandum and Order (Initial Prehearing Order) (Aug. 28, 2025) (ML25240B507).
2
[Waterkeeper]s Reply in Support of [Petition] (Sept. 12, 2025) (ML25258A244) (Reply).
3
[Waterkeeper]s Petition to Intervene and Request for Hearing (Aug. 11, 2025) (ML25223A335) (Petition).
4
[LME]s Answer to [Waterkeeper] [Petition] (Sept. 5, 2025) (ML25248A335) (LME Ans. to Pet.); NRC Staffs Answer to San Antonio Bay Estuarine Waterkeeper Petition to Intervene and Request for Hearing (Sept. 5, 2025) (ML25249A000) (NRC Ans. to Pet.).
2 The Commission has long forbidden the practice of raising new arguments, theories, and proffered contention support for the first time in a reply pleading. As explained below, this prohibition is rooted in fundamental principles of fairness, timeliness, and adjudicatory economy.
Nevertheless, Waterkeepers Reply is chock-full of improper content. It presents dozens of fresh arguments, re-worked legal theories, and newly proffered support, which impermissibly seek to alter, expand, or supplement the arguments presented in the Petition. LME is not eager to file a motion calling upon the Board to resolve each such occurrence in the Reply. But two such instances are particularly flagrant encroachments upon the Commissions pleading rules.
Notwithstanding LMEs good-faith attempt to resolve this issue among the participants, Waterkeeper declined to voluntarily withdraw those two limited portions of its Reply.5 Thus, as further described below, LME respectfully moves the Board to strike the impermissible new content, consistent with the Commissions longstanding direction to its licensing boards.
II.
LEGAL STANDARDS GOVERNING THE SCOPE OF A REPLY Focused replies are an important component of the Commissions pleading rules, which demand a level of discipline and preparedness on the part of petitioners.6 To satisfy timeliness requirements, the Commission requires petitioners to fully set forth their claims and alleged support in the petition.7 That is because answering partiessuch as LME hereare entitled to 5
In compliance with 10 C.F.R. § 2.323(b), counsel for LME, Mr. Lighty, certifies that LME made a sincere effort to contact the other participants in the proceeding and resolve the issues raised in this motion, and that LMEs efforts to resolve the issues have been unsuccessful. The NRC Staff, through counsel, stated that it does not oppose LME filing the motion but takes no position on its substance and reserves the right to respond.
Email from J. Ezell to R. Lighty (Sept. 18, 2025, 3:03 PM EDT). Waterkeeper, through counsel, stated that it is opposed to the motion and will not be withdrawing the portions of its Reply that [LME has] identified.
Email from M. Perales to R. Lighty (Sept. 18, 2025, 4:00 PM EDT).
6 La. Energy Servs. L.P. (Natl Enrichment Facility), CLI-04-25, 60 NRC 223, 225 (2004), recons. denied, CLI-04-35, 60 NRC 619 (2004) (citation omitted).
7 Id.
3 be told at the outset, with clarity and precision, what arguments are being advanced.8 As a corollary, reply pleadings cannot expand the scope of the arguments set forth in the original hearing request.9 The Commission will not permit, in a reply, the filing of new arguments or new legal theories that opposing parties have not had an opportunity to address.10 Although a reply may legitimately amplif[y] arguments from the original petition,11 or focus narrowly on responding to the answer pleadings,12 it is not a vehicle to cure admissibility deficiencies identified in the answers.13 Replies cannot be used to reinvigorate thinly supported contentions.14 And replies are not an opportunity for a petitioner to recast... the contention as originally pled.15 Allowing new claims to be added to a reply not only would defeat the contention-filing deadline but would unfairly deprive the other participants of an opportunity to rebut the new claims.16 As the Commission has explained:
the need for parties to adhere to our pleading standards and for the Board to enforce those standards are paramount. There simply would be no end to NRC licensing proceedings if petitioners could disregard our timeliness requirements and add new bases or new issues that simply did not occur to [them] at the outset.17 8
Kan. Gas & Elec. Co. (Wolf Creek Generating Station, Unit 1), ALAB-279, 1 NRC 559, 576 (1975) (emphasis added). See also DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 2), CLI-15-18, 82 NRC 135, 146 n.56 (2015)
(quoting Wolf Creek, ALAB-279, 1 NRC at 576, for the same proposition).
9 Nuclear Mgmt. Co. LLC (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727, 732 (2006) (citing LES, CLI-04-25, 60 NRC 223; USEC Inc. (Am. Centrifuge Plant), CLI-06-09, 63 NRC 433, 439 (2006)).
10 USEC, CLI-06-09, 63 NRC at 439.
11 LES, CLI-04-25, 60 NRC at 224.
12 Palisades, CLI-06-17, 63 NRC at 732.
13 Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-08-19, 68 NRC 251, 262 n.32 (2008) (citing LES, CLI-04-25, 60 NRC at 224-225) (emphasis added).
14 LES, CLI-04-25, 60 NRC at 224-225.
15 Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant and Big Rock Point Site), CLI-22-8, 96 NRC 1, 69 (2022) (citation omitted).
16 Id. (quoting Palisades, CLI-06-17, 63 NRC at 731-32).
17 LES, CLI-04-25, 60 NRC at 225 (quoting Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-03-17, 58 NRC 419, 428-29 (2003)) (emphasis added).
4 III.
PORTIONS OF WATERKEEPERS REPLY EXCEED THE PERMISSIBLE SCOPE OF A REPLY PLEADING AND SHOULD BE STRICKEN Two sections of the Reply, both found in Waterkeepers discussion of Contention 4, plainly exceed the permissible scope of a reply and should be stricken from the record. The first pertains to wholly new challenges to the sufficiency of an analysis that Waterkeeper originally (and erroneously) thought was omitted from the Preliminary Safety Analysis Report (PSAR).
But a reply cannot offer new arguments merely because the answer pleadings exposed the factually invalid basis of the original ones. The second pertains to a bold attempt to expand and recast two original arguments criticizing specific portions of the PSAR (as contentions must do pursuant to 10 C.F.R. § 2.309(f)(1)(vi)), to now include challenges to dozens of new and additional specific portions of the PSAR that were not identified in the Petition. The pleading rules do not allow petitioners to initially identify only some specific portions of the application being challenged and then surprise the other participants by disclosing, in a reply pleading, additional specific portions of the application being challenged. As explained below, the Board should strike these portions of the Reply.
A.
Waterkeepers Untimely New Challenges to the Sufficiency of the Embankment Failure Analysis Should Be Stricken from the Record In Contention 4, Waterkeeper alleged that [t]he PSARs assumptions on operating basin failure possibilities are unjustified.18 Contrary to 10 C.F.R. § 2.309(f)(1)(vi), the Petition itself did not identify the specific assumptions that Waterkeeper alleged were unjustified. Instead, it cited two paragraphs in an attached declaration as alleged support for this criticism.19 The only assumption criticized in the cited paragraphs was a statement in the PSAR that failure of 18 Petition at 47.
19 Id. (citing id., [Attach.] F ¶¶ 23-24).
5 the operating basin embankments is not a credible event.20 Waterkeeper read this statement to mean that LMEs analysis omitted and fail[ed] to consider [the] failure of impoundment embankments.21 Waterkeepers theory centered on its belief that no analysis of the potential failure of the earthen embankments had been performed; i.e., a contention of omission.
However, as both LME and the NRC Staff noted in their respective answers,22 and as Waterkeeper now admits in its Reply,23 Waterkeeper was simply wrong. Regardless of the credibility of such a scenario, the PSAR analysis conservatively assumed the failure of these embankments.24 In short, the scenario that Waterkeeper claimed was not evaluated, in fact, was.
Waterkeeper just disregarded and failed to challenge that not-omitted analysis. In its Reply, Waterkeeper seeks to replace its original theory of omissionbased on a misreading of the PSARwith two new theories of inadequacy. Specifically, Waterkeeper now wants to argue that the PSARs evaluation of embankment failuresthe same one Waterkeeper originally thought was omittedis inadequate because it: (1) is not a fully conservative approach,25 and (2) is based on a prior configuration.26 Such a wholesale substitution of Waterkeepers original challenge to the embankment analysis plainly crosses the line of what is permitted in a reply. Petitioners cannot use a reply to cure deficient arguments,27 and a reply cannot raise new arguments or new legal theories that 20 Petition, [Attach.] F ¶ 23 (quoting PSAR at 2.4-161).
21 Id. ¶ 24.
22 LME Ans. to Pet. at 86-87; NRC Ans. to Pet. at 35.
23 Reply at 30 (admitting it overlooked the relevant analysis).
24 PSAR at 2.4-161 25 Reply at 30-31.
26 Id. at 31. Waterkeepers declarant provided comments on site configuration criticizing two specific portions of the PSAR, but the discussion of embankment failures was not among them. Petition, [Attach.] F ¶ 19 (citing PSAR at 2.5-219 (Foundation Interfaces) & 2.5-245 (Stability of Slopes)). And neither Waterkeeper nor its declarant tied that criticism (¶ 19) to the embankment discussion in a separate part of the declaration (¶ 23).
27 Palisades, CLI-08-19, 68 NRC at 262 n.32 (citing LES, CLI-04-25, 60 NRC at 224-225).
6 opposing parties have not had a chance to address.28 But that is precisely what Waterkeepers Reply does. Because these new bases, challenging the sufficiency of LMEs evaluation of embankment failures, go beyond the permissible scope of a reply pleading, the Board should strike the following portion of Waterkeepers Reply:
- Reply at 30, starting at the last partial sentence (starting at But even though )
through the end of the first full sentence below the block quote on page 32 (ending, contention of omission.) and associated footnotes.
B.
Waterkeepers Untimely Challenges to Dozens of New Specific Portions of the PSAR Should Be Stricken from the Record In Contention 4, Waterkeeper criticized the PSAR as presenting incomplete analyses of maximum flood elevations of nearby waterbodies.29 Contrary to 10 C.F.R. § 2.309(f)(1)(vi),
the Petition itself did not identify any specific analyses of flood elevations that Waterkeeper viewed as incomplete. Instead, it cited paragraphs 16 to 18 of an attached declaration as alleged support.30 The cited paragraphs identify oneand only onespecific portion of the PSAR being challenged by this claim: the Combined Effects Maximum Flood Elevation value for Coloma Creek, as shown in PSAR Table 2.0-1.31 According to the declaration, Table 2.0-1 indicates that LMEs analysis of the maximum still water flood level is incomplete and [t]he 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 without all this final input information.32 Separately, the Petition also criticized unspecified analyses in the PSAR as allegedly based on outdated information because certain structures were consolidated and 28 USEC, CLI-06-09, 63 NRC at 439.
29 Petition at 47.
30 Id. (citing id., [Attach.] F ¶¶ 16-18).
31 Petition, [Attach.] F ¶¶ 16-18.
32 Id. ¶ 18.
7 moved.33 Again, the Petition itself did not identify any specific analyses in the PSAR being challenged, but instead cited paragraph 19 of an attached declaration.34 The cited paragraph identifies two specific portions of the PSAR as the target of this site-layout claim: namely, the discussions of Foundation Interfaces and Stability of Slopes.35 In its Reply, Waterkeeper impermissibly seeks to expand these two claims by presenting challenges to dozens of other specific portions of the PSAR regarding numerous other topics, issues, and analyses not identified in the Petition or in paragraphs 16 to 19 of the declaration.
The Reply now offers a significantly broader and commingled theory that the PSAR contains dozens of references to the need to incorporate additional data that is incomplete, missing, or based on a previous site design.36 More precisely, Waterkeeper seeks to recast its narrow original claims as challenging the following additional specific portions of the PSAR:
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 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 33 Petition at 47.
34 Id. (citing [Attach.] F ¶ 19).
35 Id., [Attach.] F ¶ 19 (citing PSAR at 2.5-219 (Foundation Interfaces) & 2.5-245 (Stability of Slopes)).
36 Reply at 34.
8 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).37 Despite being buried in a footnote, this is far beyond anything permitted in a reply and should be stricken from the record. It has long been the position of the Commission that answering parties are entitled to be told at the outset, with clarity and precision, what arguments are being advanced.38 Thus, petitioners must fully set forth their claims and support in the petition.39 The admissibility rules are clear: the request or petition40 is the document that must include... references to specific portions of the application... 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.41 A reply cannot be used to fulfill this requirement after-the-fact.
37 Id. at 34-35 n.112.
38 Wolf Creek, ALAB-279, 1 NRC at 576 (1975) (emphasis added); Fermi, CLI-15-18, 82 NRC at 146 n.56.
39 See id.
40 10 C.F.R. § 2.309(f)(1).
41 Id. § 2.309(f)(1)(vi) (emphasis added).
9 Simply put, Waterkeeper is not permitted to present a limited-scope challenge in the Petition and then alterand significantly expandthat scope in its Reply, even if that expanded scope simply did not occur to [it] at the outset.42 By doing so, here, Waterkeeper has flouted the contention timeliness and admissibility requirements and deprived LME and the NRC Staff of a full and fair opportunity to respond to these new allegations in an answer pleading. Because of this, the Board should strike the following portions of Waterkeepers Reply:
- Beginning with the last partial paragraph on page 34 (starting, But this is only) through the end of that same paragraph on page 35 (ending, data becomes available.) and footnote 112.
IV.
CONCLUSION The portions of Waterkeepers Reply discussed above exceed the permissible scope of a reply pleading. Accordingly, the Board should strike those portions of the Reply.
Respectfully submitted, Signed (electronically) by Ryan K. Lighty RYAN K. LIGHTY, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 (202) 739-5274 ryan.lighty@morganlewis.com Executed in Accord with 10 C.F.R. § 2.304(d)
ALEX S. POLONSKY, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 (202) 739-5830 alex.polonsky@morganlewis.com Counsel for Long Mott Energy, LLC Dated in Washington, DC this 22nd day of September 2025 42 See LES, CLI-04-25, 60 NRC at 225; McGuire/Catawba, CLI-03-17, 58 NRC at 428-29.
DB3/ 205148880.4 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 September 22, 2025 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, a copy of the foregoing LONG MOTT ENERGY LLCS MOTION TO STRIKE PORTIONS OF SAN ANTONIO BAY ESTUARINE WATERKEEPERS SEPTEMBER 12, 2025 REPLY was served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned docket.
Signed (electronically) by Ryan K. Lighty RYAN K. LIGHTY, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 (202) 739-5274 ryan.lighty@morganlewis.com Counsel for Long Mott Energy, LLC