ML25273A224
| ML25273A224 | |
| Person / Time | |
|---|---|
| Site: | 05000614 |
| Issue date: | 09/30/2025 |
| From: | Julie Ezell, Ken Wilson NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 57499, ASLBP 25-991-01-CP-BD01, 50-614-CP | |
| Download: ML25273A224 (0) | |
Text
CONTAINS SECURITY RELATED INFORMATION - SUBJECT TO NRC PROTECTIVE ORDER CONTAINS PROPRIETARY INFORMATION - WITHHELD UNDER 10 C.F.R. § 2.390 September 30, 2025 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of LONG MOTT ENERGY, LLC (Long Mott Generating Station)
Docket No. 50-614-CP NRC STAFFS ANSWER OPPOSING SAN ANTONIO BAY ESTUARINE WATERKEEPERS PETITION TO INTERVENE AND REQUEST FOR HEARING BASED ON SENSITIVE UNCLASSIFIED NON-SAFEGUARDS INFORMATION INTRODUCTION Pursuant to Chapter 10 of the Code of Federal Regulations (10 C.F.R.) § 2.309(i)(1) and the Atomic Safety and Licensing Boards (Board) Initial Prehearing Order, dated August 28, 2025,1 the staff (Staff) of the U.S. Nuclear Regulatory Commission (NRC or Commission) herein responds to the Second Corrected Supplement to the Petition to Intervene and Request for Hearing Based on Sensitive Unclassified Non-Safeguards Information (SUNSI) filed by San Antonio Bay Estuarine Waterkeeper (Petitioner or Waterkeeper) on August 29, 2025 (SUNSI Petition).2 In its SUNSI Petition, Petitioner challenges the sufficiency of information provided by Long Mott Energy, LLCs (LME) related to the Aircraft Impact Assessment contained within its 1 Long Mott Energy, LLC (Long Mott Generating Station), Memorandum and Order (Initial Prehearing Order) (Aug. 28, 2025) (unpublished) (ADAMS Accession No. ML25240B507).
2 San Antonio Bay Estuarine Waterkeepers Second Corrected Supplement to its Petition to Intervene and Request for Hearing Based on Sensitive Unclassified Non-Safeguards Information (August 29, 2025)
(ML25241A192 (nonpublic)) (SUNSI Petition). The NRC Staff acknowledges that Petitioner timely filed its Petition on August 25, 2025, and subsequently filed a corrected Petition on August 29, 2025, to include[ ]
the proper document markings in accordance with Paragraph 7 of the Protective Order issued in this proceeding[.] SUNSI Petition at 1 n.1.
CONTAINS SECURITY RELATED INFORMATION - SUBJECT TO NRC PROTECTIVE ORDER CONTAINS PROPRIETARY INFORMATION - WITHHELD UNDER 10 C.F.R. § 2.390 March 31, 2025, Construction Permit Application for the proposed Long Mott Generating Station (LMGS).3 As described more fully below, the Petition should be denied because although Petitioner has demonstrated standing, Petitioner has not explained why the information it challenges as missing or incomplete in the application must be provided in a construction permit application or is material to the findings the NRC Staff must make to reach a decision on the construction permit application.
BACKGROUND The background contained in the NRC Staffs Answer to Waterkeepers Petition for hearing on the publicly available portion of the LME Application is incorporated herein by reference.4 Relevant to this Petition, on March 31, 2025, LME submitted a construction permit application for four Xe-100 high-temperature gas-cooled reactors in Calhoun County, Texas.5 As part of the construction permit application LME provided a ((
))XE, SRI 6 As 3 Long Mott Energy, LLC, Submittal of Construction Permit Application for Long Mott Generating Station (Mar. 31, 2025) (ML25090A057 (package)) (LME Application). Certain information identified in the application as security related information and subject to the Protective Order has been updated by the applicant to also indicate it should also be protected from public release as proprietary information. See Letter from Adrian Muniz, NRC, to Mark Feltner, The Dow Chemical Company, Request to Withhold Proprietary Information from Public Disclosure for the Long Mott Generating Station Construction Permit Application Part VII (Sept. 8, 2025) (ML25240B524) (identifying that Part VII of LMEs construction permit application was updated to add proprietary markings and that such proprietary and commercial information belonging to X-Energy, LLC will be withheld from public disclosure under 10 C.F.R. § 2.390(b)(5)). The NRC Staff notified the parties, and the parties are communicating about a joint motion to update the Protective Order to also address the proprietary designation for the security related information currently subject to the Protective Order. The NRC Staff recognizes the need to protect SUNSI in this matter and, accordingly, has identified security related information as SRI and proprietary information is identified as XE.
4 NRC Staffs Answer to San Antonio Bay Estuarine Waterkeeper Petition to Intervene and Request for Hearing (Sept. 5, 2025) (ML25249A000) (NRC Staff Answer).
5 See LME Application, Part II, Preliminary Safety Analysis Report, at 1.1-1 (ML25090A061).
6 Although titled, Aircraft Impact Assessment, the application contains a description of the assessment.
See LME Application, Part II, at 3.12-1 (ML25090A061) (stating [t]he Aircraft Impact Assessment description required by 10 C.F.R. § 50.34(a)(13) is segregated because it contains security related information, but incorporated by reference into the preliminary safety analysis report); see also LME
CONTAINS SECURITY RELATED INFORMATION - SUBJECT TO NRC PROTECTIVE ORDER CONTAINS PROPRIETARY INFORMATION - WITHHELD UNDER 10 C.F.R. § 2.390 discussed below, Petitioner proposes a single contention concerning ((
))XE, SRI Specifically, Petitioner asserts that ((
))XE, SRI 7 DISCUSSION I.
The Petitioner has Demonstrated Representational Standing to Intervene This Answer incorporates the discussion of standing contained in the NRC Staffs September 5, 2025, Answer filed in this proceeding.8 In that Answer, the NRC Staff determined that the Petitioner, in this matter, has demonstrated representational standing.9 At this time, no facts have been presented to require NRC Staff to revisit its position.
II.
Regulatory Treatment of the Aircraft Impact Assessment The contention is inadmissible because it is based on a misunderstanding of the aircraft impact assessment rule and what an applicant is required to do to comply with that rule. When promulgating the final aircraft impact assessment rule, the Commission provided a robust discussion of what is to be submitted, what is not required to be submitted, what is subject to inspection, and what findings the NRC Staff makes concerning the aircraft impact assessment.10 Application, Part VII, Aircraft Impact Assessment, at VII-III
))XE, SRI In this pleading, to avoid conflating the description with the underlying assessment, the NRC Staff refers to LMEs submission in Part VII as Aircraft Impact Assessment Information.
7 SUNSI Petition at 2-3.
8 NRC Staff Answer at 3-7.
9 Id. at 5-7.
10 Consideration of Aircraft Impacts for New Nuclear Power Reactors, Final rule, 74 Fed. Reg. 28,112, 28,120 (June 12, 2009) (Consideration of Aircraft Impacts).
CONTAINS SECURITY RELATED INFORMATION - SUBJECT TO NRC PROTECTIVE ORDER CONTAINS PROPRIETARY INFORMATION - WITHHELD UNDER 10 C.F.R. § 2.390 Although the NRC Staffs review of the construction permit application is ongoing and the NRC Staff takes no position on the merits of the application, as discussed below, the Petitioner has failed to demonstrate that its contention raises a genuine dispute with the applicant on an issue of law or fact or that it is material to the findings the NRC must make on the construction permit application, as required by 10 C.F.R. § 2.309(f)(1)(iv) and (vi).
A. An Aircraft Impact Assessment Is Not Required to be Included in a Construction Permit Application The objective of the Aircraft Impact Assessment Rule is to require that nuclear power plant applicants perform a rigorous assessment of the design to identify design features and functional capabilities that could provide additional inherent protection to withstand the effects of an aircraft impact (i.e., meet the rules acceptance criteria).11 This requirement is intended to provide an enhanced level of protection beyond that which is provided by the existing adequate protection requirements.12 [A] designer who has not yet commenced detailed design activities may decide to use an iterative screening process for identifying features and capabilities.13 An applicant for a construction permit under 10 C.F.R. part 50 that is subject to the Aircraft Impact Assessment Rule is required to conduct an aircraft impact assessment and to maintain that assessment for NRC inspection, but the applicant is not required to submit the entire aircraft impact assessment to the NRC with its construction permit application.14 Pursuant to 10 C.F.R. § 50.34(a)(13), an applicant for a construction permit must submit the information 11 Id. at 28,112.
12 Id.
13 Id. at 28,129 (providing that the aircraft impact rule does not require the designer to use a specific methodology process or approach for identifying design features and functional capabilities that meet the acceptance criteria in [15 C.F.R. § 50.150(a)(1)]... designers may choose any number of ways to meet these performance requirements.).
14 See Id. at 28,120 (identifying that the aircraft impact assessment is subject to NRC inspection and must be maintained by the applicant along with the rest of the information that forms the basis for the relevant application.); see also Review of Risk-Informed, Technology-Inclusive Advanced Reactor Applications - Roadmap; Interim Staff Guidance, DANU-ISG-2022-01, at 43 (Mar. 2024) (ML23277A139)
(Interim Staff Guidance).
CONTAINS SECURITY RELATED INFORMATION - SUBJECT TO NRC PROTECTIVE ORDER CONTAINS PROPRIETARY INFORMATION - WITHHELD UNDER 10 C.F.R. § 2.390 required by 10 C.F.R. § 50.150(b) as part of its preliminary safety analysis report and here, LME attempted to meet that requirement by including Aircraft Impact Assessment Information in its application.15 Section 50.150(b) provides that the preliminary safety analysis report... must include a description of: (1) [t]he design features and functional capabilities identified in paragraph (a)(1) of this section, and (2) [h]ow the design features and functional capabilities identified in paragraph (a)(1) of this section meet the assessment requirements in paragraph (a)(1) of this section.16 Accordingly, 10 C.F.R. § 50.150(a)(1) requires that:
Each applicant [for a construction permit] shall perform a design-specific assessment of the effects on the facility of the impact of a large, commercial aircraft. Using realistic analyses, the applicant shall identify and incorporate into the design those design features and functional capabilities to show that, with reduced use of operator actions: (i) [t]he reactor core remains cooled, or the containment remains intact; and (ii) spent fuel cooling or spent fuel pooling integrity is maintained. [(Acceptance Criteria)].17 The NRC expects the Aircraft Impact Assessment to be rigorous and will confirm that the applicant performed the impact assessment consistently with applicable regulatory requirements.18 Failure to perform the aircraft impact assessment will be deemed a violation of the rule and an assessment that is inadequate to reasonably assess the aircraft impact or to identify design features or functional capabilities could be considered a violation of the rule, for which the NRC may take appropriate enforcement action.19 Because the NRCs confirmation as to the adequacy of the applicants impact assessment is conducted independently of the NRCs 15 See 10 C.F.R. § 50.34(a)(13); LME Application, Part II, at 3.12-1; see also Consideration of Aircraft Impacts, 74 Fed. Reg. at 28,132; Interim Staff Guidance, at 42-44.
16 10 C.F.R. § 50.150(b).
17 10 C.F.R. § 50.150(a)(1).
18 Consideration of Aircraft Impacts, 74 Fed. Reg. at 28,120 (identifying that if the NRC believes, during the course of its review of the application, that the application contains incomplete or insufficient descriptions of the design features and functional capabilities included in the design, or insufficient discussions of how those features and capabilities show, with reduced use of operator action, that the facility can withstand the effects of an aircraft impact, then the NRC may request additional information or may review the assessment prior to [a decision on the application.]).
19 Id. at 28,120 (stating, [a] failure to perform the assessment will be a violation of the rule).
CONTAINS SECURITY RELATED INFORMATION - SUBJECT TO NRC PROTECTIVE ORDER CONTAINS PROPRIETARY INFORMATION - WITHHELD UNDER 10 C.F.R. § 2.390 licensing or approval action on the relevant application,20 and contentions challenging the construction permit must be based on the application for the construction permit, the adequacy of the impact assessment may not be the subject of a contention submitted as part of a petition to intervene under 10 C.F.R. § 2.309.21 The Commission has, however, defined two bases upon which petitioners may challenge the applicants description in the construction permit application of the design features and functional capabilities that show that, with reduced use of operator actions: (i) [t]he reactor core remains cooled, or the containment remains intact; and (ii) spent fuel cooling or spent fuel pooling integrity is maintained, referred to as the acceptance criteria. The two acceptable bases upon which a petitioner can challenge the information in the construction permit are:
(i) that the analyses utilized by the applicant to show the acceptance criteria are met are not technically acceptable, or (ii) the design features and functional capabilities provided by the applicant do not involve any reduced use of operator actions.22 At both the construction permit and operating license stages, an application must contain a description of the design features that meet the acceptance criteria based on the level of design information available at the time of each application.23 For applications involving non-light-water-reactors (non-LWRs), all of the four aspects of the acceptance criteria may not be applicable to a specific design.24 In these 20 Id.
21 Id. (stating the adequacy of the impact assessment may not be the subject of a contention submitted as part of a petition to intervene under 10 CFR 2.309, Hearing requests, petitions to intervene, requirements for standing, and contentions.).
22 Id.
23 Id. at 28,115, 28,126; see id. at 28,130 (also noting an NRC review or interested person in a hearing contention may only raise an issue with respect to whether the [applicants] analyses are within the bound of known data, known physical phenomena, and use professionally accepted approaches.); see also Interim Staff Guidance, Appendix C, at 2.
24 See Consideration of Aircraft Impacts, 74 Fed. Reg. at 28,131; see also Interim Staff Guidance at 43 (identifying that the NRC Staff may consider a holistic risk-informed consideration of design-specific features, including the potential consequences of an aircraft impact [as] a basis for meeting the underlying purpose of [10 C.F.R. § 50.150].); Staff Assessment of Selected Small Modular Reactor
CONTAINS SECURITY RELATED INFORMATION - SUBJECT TO NRC PROTECTIVE ORDER CONTAINS PROPRIETARY INFORMATION - WITHHELD UNDER 10 C.F.R. § 2.390 cases, an applicant for a non-LWR design may supplement the acceptance criteria based on other key functions for non-LWR designs, or the Commission may issue an exemption or impose additional acceptance criteria and/or requirements.25 Under the final rule, the NRC will confirm that the information required by 10 C.F.R.
§ 50.150(b) is included in the applicants [preliminary safety analysis report] PSAR or [final safety analysis report] FSAR, namely, the description of the design features and functional capabilities identified as a result of the assessment and a description of how those features and capabilities show, with reduced use of operator action, that the assessment requirements in 10 C.F.R. § 50.150(a)(1) are met.26 The NRC Staff reviews the information contained in the application and reaches conclusions as to whether the applicant has: (1) adequately described design features and functional capabilities in accordance with the aircraft impact rule; and (2) conducted an assessment reasonably formulated to identify design features and functional capabilities to show, with reduced use of operator action, that the facility can withstand the effects of an aircraft impact.27 III.
Contention Admissibility Petitioner submits a single contention challenging ((
Issues Identified in SECY-10-0034, Commission Paper SECY-11-0112, Encl. 5 at 1 (Aug. 12, 2011)
(ML110460434) (citing Consideration of Aircraft Impacts, 74 Fed. Reg. at 28,131).
25 See Consideration of Aircraft Impacts, 74 Fed. Reg. at 28,131 (noting that the functions are applicable to light water reactors (LWRs), and each may not be applicable to non-LWR reactor designs or may have to be supplemented by other key functions.). ((
]XE, SRI 26 See Consideration of Aircraft Impacts 74 Fed. Reg. at 28,120.
27 Id. at 28,120.
CONTAINS SECURITY RELATED INFORMATION - SUBJECT TO NRC PROTECTIVE ORDER CONTAINS PROPRIETARY INFORMATION - WITHHELD UNDER 10 C.F.R. § 2.390
))SRI 28 Specifically, Petitioner asserts that, ((
))SRI 29 For the reasons set forth below, the Petitioners contention is inadmissible because it does not meet the requirements in 10 C.F.R. § 2.309(f)(1)(iv) and (vi).
A. Contention Admissibility Requirements The NRCs requirements governing the admissibility of contentions are identified in 10 C.F.R.
§ 2.309(f)(1). Specifically, a petitioner must set forth with particularity the contentions sought to be raised and, for each, must:
(i)
Provide a specific statement in the issue of law or fact to be raised or controverted; (ii)
Provide a brief explanation of the basis for the contention; (iii)
Demonstrate that the issue raised in the contention is within the scope of the proceeding; (iv)
Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding;30 (v)
Provide a concise statement of the alleged facts or expert opinions which support the requestors/petitioners position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the petitioner intends to rely to support its position on the issue; [and]31 28 SUNSI Petition at 2.
29 Id. at 2-3.
30 Holtec International (Hi-STORE Consolidated Interim Storage Facility), CLI-20-4, 91 NRC 167, 190 (2020).
31 USEC Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 457 (2006) (holding that it is the petitioners responsibility to satisfy the basic contention admissibility requirements; boards should not have to search through a petition to uncover arguments and support for a contention, and may not simply infer unarticulated bases for contentions); see also Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2 and 3), CLI-91-12, 34 NRC 149, 155 (1991).
CONTAINS SECURITY RELATED INFORMATION - SUBJECT TO NRC PROTECTIVE ORDER CONTAINS PROPRIETARY INFORMATION - WITHHELD UNDER 10 C.F.R. § 2.390 (vi)
... [P]rovide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue or law or fact. This information must include references to specific portions of the application (including the applicants environmental report and safety report) that the petitioner disputes and the supporting reason 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 reason for the petitioners belief.32 Failure to satisfy any of the six pleading requirements renders a contention inadmissible.33 Moreover, pursuant to 10 C.F.R. § 2.309(f)(2), [c]ontentions must be based on documents or other information available at the time the petition is to be filed, such as the application, supporting safety analysis report, environmental report, or other supporting document filed by an applicant or licensee, or otherwise available to a petitioner.34 Importantly, the 10 C.F.R. § 2.309(f)(1) contention admissibility requirements are intended to focus litigation on concrete issues and result in a clearer and more focused record for decision.35 The Commission has stated that it should not have to expend resources to support the hearing process unless there is an issue that is appropriate for, and susceptible to, resolution in an NRC hearing.36 As the Commission has explained, the contention admissibility rules are strict by design and are intended to ensure that adjudicatory proceedings are triggered only by substantive safety or environmental issues, rooted in a reasonably specific factual or legal basis and to 32 10 C.F.R. § 2.309(f)(1)(vi).
33 Entergy Nuclear Operations, Inc. (Indian Point, Unit 2), CLI-16-5, 83 NRC 131, 136 (2016) (citing Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3) CLI-01-24, 54 NRC 349, 358 (2001); South Carolina Electric & Gas Co. (Virgil C. Summer Nuclear Station, Units 2 and 3),
CLI-10-1, 71 NRC 1, 7 (2010); see also Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3),
CLI-99-11, 49 NRC 328, 334-35 (1999).
34 10 C.F.R. § 2.309(f)(2).
35 Changes to Adjudicatory Process; Final rule, 69 Fed. Reg. 2182, 2202 (Jan. 14, 2004). See Southern Nuclear Operating Co. Inc. (Vogtle Electric Generating Plant, Unit 3) LBP-20-8, 92 NRC 23, 46 (2020);
Crow Butte Resources, Inc. (In Situ Leach Facility, Crawford, NE), LBP-15-15, 81 NRC 598, 601 (2015).
36 Changes to Adjudicatory Process, 69 Fed. Reg. at 2202.
CONTAINS SECURITY RELATED INFORMATION - SUBJECT TO NRC PROTECTIVE ORDER CONTAINS PROPRIETARY INFORMATION - WITHHELD UNDER 10 C.F.R. § 2.390 screen out ill-defined, speculative, or otherwise unsupported claims.37 The rules require a clear statement as to the basis for the contentions and the submission of supporting information and references to specific documents and sources that establish the validity of the contention.38 In general, contentions fall within two categories - contentions of omission and contentions of adequacy.39 Contentions that claim a failure to include required information are considered contentions of omission, while contentions that challenge substantively and specifically how particular information has been discussed in [an] application are considered contentions of adequacy.40 Alternatively, contentions that are nothing more than a generalization regarding the petitioners view of what applicable policies ought to be must be rejected.41 Further, a proposed contention must be rejected if it raises issues beyond the scope of the proceeding as established by the Commissions hearing notice.42 Although a petitioner does not have to prove its contention at the admissibility stage,43 the contention admissibility standards are meant to afford hearings only to those who proffer at 37 See Exelon Generation Co., LLC (Oyster Creek Nuclear Generating Station), CLI-19-6, 89 NRC 465, 471-472 (2019) (internal quotation marks omitted); see also Indian Point, CLI-16-5, 83 NRC at 136 (citing Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349, 358 (2001) and South Carolina Electric & Gas Co. (Virgil C. Summer Nuclear Station, Units 2 and 3),
CLI-10-1, 71 NRC 1, 7 (2010).
38 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 118-19 (2006).
39 See Tennessee Valley Authority (Clinch River Nuclear Site Early Site Permit Application), CLI-18-5, 87 NRC 119, 120 (2018) (explaining that [c]ontentions of omissions generally need not provide the same level of factual support required for a contention challenging the adequacy of information in an application. It is enough for a petitioner to identify the information that is claimed to be missing and demonstrate why that information is required.); see Pacific Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-16-11, 83 NRC 524, 534 (2016); see also Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-28, 56 NRC 373, 382-84 (2002).
40 Diablo Canyon, CLI-16-11, 83 NRC at 534.
41 Millstone, CLI-03-14, 58 NRC at 218.
42 Vogtle, 92 NRC at 46 (citing Public Service Co. of Indiana, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-05-24, 62 NRC 167 551, 560 (2005)).
43 Private Fuel Storage L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-22, 60 NRC 125, 139 (2004).
CONTAINS SECURITY RELATED INFORMATION - SUBJECT TO NRC PROTECTIVE ORDER CONTAINS PROPRIETARY INFORMATION - WITHHELD UNDER 10 C.F.R. § 2.390 least some minimal factual and legal foundation in support of their contentions.44 A petitioner must provide some support for the contention, either in the form of facts or expert testimony, and failure to do so requires that the contention be rejected.45 Any supporting material provided by the petitioner is subject to scrutiny by the presiding officer,46 who must confirm that the proffered material provides adequate support for the contention.47 The Commission has long held that the basis requirements are intended to: (1) ensure that the contention raises a matter appropriate for adjudication in a particular proceeding; (2) establish a sufficient foundation for the contention to warrant further inquiry into the assertion; and (3) put other parties sufficiently on notice of the issues to be litigated.48 B. Petitioners Contention is Inadmissible Because the Petitioner Has Not Demonstrated that LMEs Application Lacks Required Information.
Petitioner argues that ((
))XE, SRI 49 Petitioners underlying rationale for its 44 Oconee, CLI-99-11, 49 NRC at 334.
45 Palo Verde, CLI-91-12, 34 NRC at 155; accord, Indian Point, CLI-16-5, 83 NRC at 136. See Rules of Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, 54 Fed.
Reg. at 33,170 (This requirement does not call upon the intervener to make its case at this stage of the proceeding, but rather to indicate what facts or expert opinions, be it one fact or opinion or many, of which it is aware at that point in time [that] provide the basis for its contention.).
46 See Vermont Yankee Nuclear Power Co. (Vermont Yankee Nuclear Power Station), ALAB-919, 30 NRC 29, 48 (1989), vacated in part on other grounds and remanded, CLI-90-4, 31 NRC 333 (1990); see also Tennessee Valley Authority (Bellefonte Nuclear Plant, Units 1 and 2), LBP-10-7, 71 NRC 391, 421 (2010).
47 See Vermont Yankee Nuclear Power Corporation, (Vermont Yankee Nuclear Power Station), ALAB-919, 30 NRC 29, 48 (1989); see also Tennessee Valley Authority (Bellefonte Nuclear Plant, Units 1 and 2),
LBP-10-7, 71 NRC 391, 421 (2010).
48 Oconee, CLI-99-11, 49 NRC at 334; see also Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1974).
49 SUNSI Petition at 2-3.
CONTAINS SECURITY RELATED INFORMATION - SUBJECT TO NRC PROTECTIVE ORDER CONTAINS PROPRIETARY INFORMATION - WITHHELD UNDER 10 C.F.R. § 2.390 Contention is that ((
))XE, SRI 50 However, Petitioner fails to demonstrate that its contention is material to a decision the NRC must make on the construction permit application, or that there is a genuine dispute with the applicant on a material issue of law or fact, as required by 10 C.F.R. § 2.309(f)(1)(iv) and (vi).51 Rather, Petitioners SUNSI Petition is based solely on generalizations that the information provided in LMEs Aircraft Impact Assessment ((
))SRI without providing the necessary support to explain why the assessment is ((
))SRI must be provided at the construction permit stage.
- i.
Guidance does not impose requirements.
Petitioners Footnote 7 appears to tangentially proffer that LME has failed to meet the underlying purpose of the regulations because the ((
))XE, SRI 52 To support this assertion, Petitioner cites to the Interim Staff Guidance and asserts that, if an application contemplates the ability to produce process heat for industrial use... the staff should include the impacts resulting from events at the industrial facility associated with the reactor, including aircraft impacts, as part of the external hazards analysis and the siting evaluation.53 Guidance documents, such as a Regulatory 50 Id. at 4 51 See Oconee, CLI-99-11, 49 NRC at 328, 333.
52 SUNSI Petition at 3.
53 Id. at n.7; Interim Staff Guidance at 43.
CONTAINS SECURITY RELATED INFORMATION - SUBJECT TO NRC PROTECTIVE ORDER CONTAINS PROPRIETARY INFORMATION - WITHHELD UNDER 10 C.F.R. § 2.390 Guide or Interim Staff Guidance, do not, however, impose requirements on applicants or licensees.54 Only statutes, regulations, orders, and license conditions can impose requirements upon applicants and licensees.55 Although NRC guidance documents are not legally binding, and compliance with them is not required, they describe an approach to compliance with [NRC]
rules that is acceptable to the NRC.56 But nonconformance with [guidance] does not equate to noncompliance with the regulations.57 In any event, the portion of the Interim Staff Guidance cited by Petitioner is guidance to the NRC Staff and not applicants58 and it is well established that it is the application and not the NRC Staffs review that is the scope of a hearing.59 Further, Petitioner only asserts that
))XE, SRI Therefore, Petitioner has not demonstrated that this issue is relevant to the findings the NRC must make on the construction permit application or shown with sufficient 54 See Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), CLI-15-6, 81 NRC 340, 358 (2015) (To be sure, Staff guidance documents do not have the force of law and we are not bound to follow them.);
Nextera Energy Seabrook, LLC (Seabrook Station, Unit 1), LBP-20-12, 92 NRC 431, 453 (Nov. 6, 2020)
(Indeed, an agency violates the Administrative Procedure Act if it treats a guidance document as binding, either on itself or on the regulated community.).
55 See Curators of the University of Missouri, CLI-95-1, 41 NRC 71, 98 (1995); see also Areva Enrichment Servs., LLC (Eagle Rock Enrichment Facility), CLI-11-4, 74 NRC 1, 8 n.35 (2011) (identifying that
[a]lthough NRC guidance documents are not legally binding, an compliance with them is not required, they describe an approach to compliance with [NRC] rules that is acceptable to the NRC.).
56 Eagle Rock Enrichment Facility, CLI-11-4, 74 NRC at 8 n.35.
57 University of Missouri, CLI-95-1, 41 NRC 71, 98 (1995).
58 See Interim Staff Guidance at 42-43. The portion of the Interim Staff Guidance is under a section titled Staff Review Guidance and discusses items the NRC Staff should consider in its review.
59 Changes to Adjudicatory Process, 69 Fed. Reg. at 2,202 (The adequacy of the applicants license application, not the NRC staffs safety evaluation, is the safety issue in any licensing proceeding[.]).
60 Petition at 3.
CONTAINS SECURITY RELATED INFORMATION - SUBJECT TO NRC PROTECTIVE ORDER CONTAINS PROPRIETARY INFORMATION - WITHHELD UNDER 10 C.F.R. § 2.390 information that a genuine dispute exists with the applicant on an issue of material law or fact, as required by 10 C.F.R. 2.309(f)(1)(iv) and (vi).
ii.
Petitioners argument that LMEs ((
)) XE, SRI fail to meet 10 C.F.R. § 50.150(a) is inadmissible.
As justification for its Contention, Petitioner cites to and relies upon a ((
))XE, SRI Petitioner asserts that LME
))XE, SRI 62 Petitioner contends that ((
]SRI so that any necessary design changes could occur before an operating license application is considered.63 While Petitioner argues that the information provided by LME does not
))SRI Petitioner only challenges LMEs ((
))XE, SRI Iterative screening processes are allowed for designers that have not commenced detailed design activities and it is not until the operating license stage that the applicant is required to provide the NRC with its final design.65 As the Commission explained, a construction permit holder will need to update its initial assessment when it is preparing to 61 Id. at 4-5.
62 Id. at 5.
63 Id. at 6.
64 Petition at 2-3, 6.
65 Consideration of Aircraft Impacts, 74 Fed. Reg. at 28,126, 28,115.
CONTAINS SECURITY RELATED INFORMATION - SUBJECT TO NRC PROTECTIVE ORDER CONTAINS PROPRIETARY INFORMATION - WITHHELD UNDER 10 C.F.R. § 2.390 submit its operating license application because it is only at the operating license stage that the applicant will be seeking NRC approval of its final design.66 In addition, the Commission has been clear that the adequacy of the impact assessment may not be the subject of a contention submitted as part of a petition to intervene under 10 C.F.R. § 2.309.67 The information in LMEs construction permit application is based on a preliminary design.68 The NRC Staffs review of the application and the Applicants Aircraft Impact Assessment is ongoing, and, as such, the NRC Staff takes no position as to its adequacy, but, as the Applicant acknowledges in the ((
))XE, SRI Indeed, [t]he NRC can issue a construction permit based on preliminary design information.70 Applicants are required to include information in their application based on the level of design information available at the time of each application.71 To the extent Petitioner raises a contention of omission, Petitioner has not demonstrated that the analyses it challenges as missing must be provided at the construction permit stage,72 or explained why this information is necessary for the NRC to make its findings on a construction permit application, as required by 10 C.F.R. § 2.309(f)(1)(iv) and (vi).73 Petitioner also does not attempt to explain whether LME, ((
66 Id. at 28,121.
67 Id. at 28,120.
68 See 10 C.F.R. § 50.34(a)(3); LME Application, Part II, at 1.1-1; see also LME Application, Part VII, at Part VII-X.
69 LME Application, Part VII, at Part VII-X.
70 Consideration of Aircraft Impacts, 74 Fed. Reg. at 28,115, 28,126.
71 Id.
72 See Clinch River, CLI-18-5, 87 NRC at 120.
73 See Palo Verde, CLI-91-12, 34 NRC at 155; see also Indian Point, CLI-16-5, 83 NRC at 136.
CONTAINS SECURITY RELATED INFORMATION - SUBJECT TO NRC PROTECTIVE ORDER CONTAINS PROPRIETARY INFORMATION - WITHHELD UNDER 10 C.F.R. § 2.390
))SRI This is an essential requirement needed for an admissible contention under 10 C.F.R. § 2.309(f)(1)(vi).74 To the extent Petitioner is arguing a contention of adequacy, Petitioner fails to substantively and specifically challenge the identified design features and functional capabilities described in LMEs Aircraft Impact Assessment Information or explain why that information does not satisfy 10 C.F.R. § 50.150(b).75 Specifically, LME provides that the
))XE, SRI 76 However, other than referencing ((
))XE, SRI Petitioner fails to provide any supporting justification as to ((
))XE, SRI to meet 10 C.F.R. § 50.150(b), as required by 10 C.F.R.
§ 2.309(f)(1)(vi).
74 See Virginia Electric and Power Company (North Anna Power Station, Unit 3), LBP-08-15, 68 NRC 294, 294 (2018) (holding that when an application is alleged to be deficient, the petitioner must identify the deficiencies and provide supporting reasons for its position that such information is required.); see also Detroit Edison Co. (Fermi Nuclear Power Plant, Unit 3), LBP-09-16, 70 NRC 227, 244 (2009) (identifying that for a contention of omission, the petitioners burden is only to show the facts necessary to establish that the application omits information that should have been included. The facts relied on need not show that the facility cannot be safety operated but only that the application is incomplete.).
75 See 10 C.F.R. §2.309(f)(1)(vi); see also Diablo Canyon, CLI-16-11, 83 NRC at 534 n.60 (citing McGuire, CLI-02-28, 56 NRC at 384) (holding that the label [of adequacy or omission] is not the deciding factor at the contention admissibility stage. It is the arguments made and the support provided for those arguments, and ultimately, the demonstrate of a genuine dispute that determines whether or not a contention is admissible.)
76 LME Application, Part VII, at Part VII-VII.
CONTAINS SECURITY RELATED INFORMATION - SUBJECT TO NRC PROTECTIVE ORDER CONTAINS PROPRIETARY INFORMATION - WITHHELD UNDER 10 C.F.R. § 2.390 CONCLUSION For the reasons discussed above, the NRC Staff opposes the admission of the Contention in its entirety because Petitioner has failed to meet the contention admissibility requirements in 10 C.F.R. §2.309(f)(1)(iv) and (vi).
Respectfully submitted,
/Signed (electronically) by/
Kristopher P. Wilson Counsel for NRC Staff Mail Stop: O15-B04 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 415-0672 E-mail: kris.wilson@nrc.gov
/Executed in Accord with 10 CFR 2.304(d)/
Julie G. Ezell Counsel for NRC Staff Mail Stop: O15-B04 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9157 Email: julie.ezell@nrc.gov
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of LONG MOTT ENERGY, LLC (Long Mott Generating Station)
Docket No. 50-614-CP CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. §2.305, I hereby certify that the redacted version of the NRC Staffs Answer Opposing San Antonio Bay Estuarine Waterkeepers Petition to Intervene and Request for Hearing Based on Sensitive Unclassified Non-Safeguards Information, has been served upon the Electronic Information Exchange (NRCs E-Filing System), in the captioned proceeding, this 30th day of September 2025.
/Signed (electronically) by/
Kristopher P. Wilson Counsel for NRC Staff Mail Stop: O 15 B04 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 415-0672 E-mail: kris.wilson@nrc.gov