ML25353A604
| ML25353A604 | |
| Person / Time | |
|---|---|
| Site: | 05000614 |
| Issue date: | 12/19/2025 |
| From: | Stephens S NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 57562, ASLBP 25-991-01-CP-BD01, 50-614-CP | |
| Download: ML25353A604 (0) | |
Text
December 19, 2025 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of LONG MOTT ENERGY, LLC (Long Mott Generating Station)
Docket No. 50-614-CP NRC STAFFS ANSWER TO SAN ANTONIO BAY ESTUARINE WATERKEEPERS AMENDED CONTENTION 1 INTRODUCTION Pursuant to 10 C.F.R. § 2.309(i)(1), the staff (Staff) of the U.S. Nuclear Regulatory Commission (NRC) herein responds to the Motion to Amend Contention 1 Based on PSAR Supplement 1 (Motion) filed by San Antonio Bay Estuarine Waterkeeper (Waterkeeper or Petitioner) on December 5, 2025.1 In its Motion, Waterkeeper seeks to amend Contention 1 regarding a lack of testing required under 10 C.F.R. § 50.34(a)(8), originally submitted in its August 11, 2025, petition to intervene and request for hearing (Petition).2 Petitioner argues that supplemental information submitted by Long Mott Energy, LLC (LME) on September 26, 2025,3 does not moot Contention 1 and gives rise to new admissible issues under 10 C.F.R. § 50.35(a) 1 San Antonio Bay Estuarine Waterkeepers Motion to Amend Contention 1 Based on PSAR Supplement 1 (Dec. 5, 2025) (ADAMS Accession No. ML25339A186) (Motion).
2 San Antonio Bay Estuarine Waterkeepers Petition to Intervene and Request for Adjudicatory Hearing (Aug. 11, 2025) (ML25223A335) (Petition).
3 Letter from Charles OConner, LME to Document Control Desk, NRC, Supplement #1 to the Preliminary Safety Analysis Report for the Long Mott Generating Station Construction Permit Application (Sep. 26, 2025) (ML25269A125 (package)) (Supplement 1).
and 10 C.F.R. § 50.34(a)(8). On December 3, 2025, the NRC Staff notified the Atomic Safety and Licensing Board (Board) that new information submitted by LME in its Supplement 1 cured the omission in Contention 1 related to 10 C.F.R. § 50.34(a)(8). For the reasons set forth below, Petitioners amended Contention 1 is inadmissible. Therefore, the NRC Staff opposes the admission of Contention 1 and the amended Contention 1 in their entirety.
BACKGROUND As relevant here, in its Sept 5 Answer, the NRC Staff described why it agreed that a portion of Contention 1 should be admitted as a contention of omission.4 After the NRC Staff filed its Answer to the Petition, LME supplemented its Construction Permit Application (LM-CPA) to provide a schedule showing that testing to qualify its fuel would be completed by the latest date for construction given in the application, curing the omission.5 On December 3, 2025, NRC Staff notified the Board and parties that its position had changed and the NRC Staffs view was that LMEs September 26, 2025, Supplement 1 mooted the portion of Petitioners Contention 1 concerning an omission of testing data required by 10 C.F.R. § 50.34(a)(8).6 Thereafter, on December 5, 2025, Petitioner submitted its Motion pursuant to 10 C.F.R. § 2.309(c) challenging LMEs Supplement 1 and stating that it does not resolve the dispute raised by Waterkeepers Contention 1 in its initial Petition and added that Supplement 1 fails to satisfy the requirements of 10 C.F.R. § 50.35(a).7 DISCUSSION As more fully explained below, while Petitioner continues to have representational standing to intervene in this proceeding, its new and amended contentions put forth in its Motion fail to satisfy the Commissions contention admissibility standards in 10 C.F.R. § 2.309(f)(1). For 4 NRC Staffs Answer to San Antonio Bay Estuarine Waterkeeper Petition to Intervene and Request for Hearing, at 11-16 (Sep. 5, 2025) (ML25249A000) (NRC Staff Answer).
5 See Supplement 1.
6 Notification Regarding Supplemental Information, at 4-5 (Dec. 3, 2025) (ML25337A133).
7 See Motion at 1, 5.
the reasons discussed below, Contention 1 from the Petitioners Petition should be denied as moot, and the NRC Staff opposes the admission of the new and amended contentions in Petitioners Motion in their entirety.
I.
Standing The NRC Staff incorporates its discussion of standing in its September 5, 2025 Answer, that states the Petitioner has demonstrated representational standing.8 II.
Contention Admissibility The NRC Staffs September 5 Answer discusses the requirements for proffering an admissible contention.9 Portions of that discussion are worth reiterating here. A petitioner must fulfill each one of the requirements in 10 C.F.R. 2.309(f)(1) for a particular contention to be admissible.10 If an application is believed to be deficient, in other words if there is an omission, a petitioner must merely identify the deficiencies and support why the missing information is needed.11 If, however, a petitioner is seeking to show that a genuine dispute exists on a material issue of law or fact, in other words that part of the application is inadequate, it must reference the specific portions of the application that the petitioner disputes.12 As such, there is a difference between contentions that merely allege an omission of information and those that challenge substantively and specifically how particular information has been discussed in a license application.13 The contention admissibility regulations were revised to their current version in part to raise the threshold for the admission of contentions to require the proponent of the contention to supply information showing the existence of a genuine dispute with the 8 See NRC Staff Answer at 4-7.
9 See id. at 8-11.
10 See, e.g., Entergy Nuclear Operations, Inc. (Indian Point, Unit 2), CLI-16-5, 83 NRC 131, 136 (2016).
11 See 10 C.F.R. § 2.309(f)(1)(vi); see also Tennessee Valley Authority (Clinch River Early Site Permit Application), CLI 18-5, 87 NRC 119, 122 (2018).
12 See 10 C.F.R. § 2.309(f)(1)(vi); Clinch River, CLI 18-5, 87 NRC at 122.
13 See Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2), CLI-02-28, 56 NRC 373, 382-83 (2002).
applicant on an issue of law or fact.14 That is, a contention must present a disagreement on a material issue.15 A Petitioner must also explain, with specific support, why the disagreed-upon issue will have a material impact.16 These rules are strict by design and insist upon some reasonably specific factual and legal basis for the contention.17 As such, a presiding officer shall not admit a contention to the proceeding if the intervenor fails to set forth the contention with reasonable specificity.18 Accordingly, [n]either mere speculation nor bare or conclusory assertions, even by an expert, alleging that a matter should be considered will suffice to allow the admission of a proffered contention.19 Additionally, under 10 C.F.R. § 2.309(c)(1), motions for leave to file new or amended contentions filed after the deadline [to file a petition to intervene] will not be entertained unless a participant demonstrate[s] good cause. Good cause is demonstrated by showing: (i) The information upon which the filing is based was not previously available; (ii) The information upon which the filing is based is materially different from information previously available; and (iii) The filing has been submitted in a timely fashion based on the availability of the subsequent information.20 A.
Timeliness
- i.
Petitioners new or amended contentions based on the information in Supplement 1 are timely.
14 Rules of Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,168 (Aug. 11, 1989) (Hearing Process Final Rule).
15 Nuclear Operating Company (Davis-Besse Nuclear Power Station, Unit 1), LBP-15-1, 81 NRC 15, 39 (2015); see also 10 C.F.R. § 2.309(f)(1)(iv) (requiring a contention to be material to the findings the NRC must make to support the action); 10 C.F.R. § 2.309(f)(1)(vi) (requiring a contention to provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact.).
16 Davis-Besse, LBP-15-1, 81 NRC at 39.
17 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349, 358-59 (2001) (quoting Oconee, CLI-99-11, 49 NRC at 335).
18 Hearing Process Final Rule, 54 Fed. Reg. at 33,171.
19 System Energy Resources, Inc. (Early Site Permit for Grand Gulf ESP Site), LBP-04-19, 50 NRC 277, 289 (2004).
20 10 C.F.R. § 2.309(c)(1).
LME submitted Supplement 1, which included a schedule showing that testing to qualify its fuel would be completed by the latest date for construction given in the LM-CPA, on September 26, 2025, and it became publicly available that same day.21 The LM-CPA did not contain a discussion of the schedule for fuel testing and thus, Supplement 1 contained new information that is materially different from information previously available. Petitioner filed its Motion on December 5, 2025, which is within the filing deadline established in this proceeding.22 ii.
Petitioners attempt to recharacterize its initial contention of omission into a contention of adequacy is untimely.
There is a difference between contentions that merely allege an omission of information and those that challenge substantively and specifically how particular information has been discussed in a license application.23 The NRC Staffs position in its September 5, 2025 Answer was that a portion of Contention 1 identified an omission in the application.24 In its Reply, Petitioner agreed with NRC Staffs characterization of this contention as one of omission.25 However, Petitioner now attempts to recharacterize its initial Contention 1 related to 21 See Letter from Ryan Lighty, Morgan, Lewis & Bockius to Atomic Safety and Licensing Board (Sept. 26, 2025) (ML25269A212).
22 See Memorandum and Order (Initial Prehearing Order) (Aug. 28, 2025) (unpublished) (ML25272A231)
(motions for new or amended contentions should be filed within 30 days of the date the new information upon which the motion is based becomes available); Notice (Regarding Agency Shutdown) (Oct. 1, 2025)
(ML25274A129) (stating that filling deadlines are automatically extended by the number of days that the NRC is shut down); see also Notice of Resumption of Adjudications (Nov. 13, 2025) (ML25317A695)
(stating filing deadlines affected by the shutdown were extended by 43 days).
23 McGuire, CLI-02-28, 56 NRC at 382-83; see also Amergen Energy Co. (Oyster Creek Nuclear Generating Station), LBP-06-16, 63 NRC 737, 742 (2006).
24 NRC Staff Answer at 14. Once LME submitted the omitted information, the NRC Staff updated its position to indicate this portion of Contention 1 had been mooted. NRC Staff Notice (Dec. 3, 2025).
25 See San Antonio Bay Estuarine Waterkeepers Reply in Support of Petition to Intervene and Request for Hearing at 13-14 (Sep. 12, 2025) (ML25258A244) (NRC staff correctly recognized that Waterkeepers identification of the omission of critical information from the LM-CPA calls into question the applicants compliance with 10 C.F.R. § 50.34(a)(8).) (Reply); see also Reply at 16 (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.).
10 C.F.R. § 50.34(a)(8) as a contention of inadequacy26 and such a recharacterization is untimely and impermissible.
The initial portion of Contention 1 involving 10 C.F.R. § 50.34(a)(8) was inherently a contention of omission.27 Petitioners initial contention quoted 10 C.F.R. § 50.34(a)(8) and stated that [t]he LM-CPA fails to satisfy these requirements. This is because the latest date for completion of construction cited in the LM-CPA is 2033.28 Petitioner goes on to say that X-Energy is unlikely to be able to conduct the necessary testing and obtain all results by then; LME has not demonstrated otherwise.29 In its September 26, 2025 Supplement, LME provided a schedule for this testing that shows it will be completed by Fall 2030.30 Where a contention alleges the omission of particular information or an issue from an application, and the information is later supplied by the applicant or considered by the Staff in a draft EIS, the contention is moot.31 As detailed in the NRC Staffs December 3, 2025, Notice, LMEs Supplement 1 mooted this contention of omission, as originally pled.
Nothing prevents Petitioner from challenging the adequacy of the supplemental information LME submitted after the initial hearing petition passed. Moreover, 10 C.F.R.
§ 2.309(c) specifically permits Petitioner to assert that LMEs Supplement 1 fails to meet 10 C.F.R. § 50.34(a)(8), as it has done in its Motion.32 But insofar as Petitioner attempts to 26 Motion at 5 (That contention was not one of omission, but one of inadequacy.).
27 See NRC Staff Answer at 13-16.
28 Petition at 20.
29 Petition at 21. Notably, the entirety of Contention 1 only includes two citations to the CPA. The first being the citation to page 2 of Part I of the CPA stating that the latest date for construction is 2033. The second is a citation to Part V of the CPA to reference LMEs request for an exemption from part of 10 C.F.R.
§ 50.34(a)(1)(ii)(D). Contention 1 does not contain a single reference or citation to LMEs PSAR contained in Part II of its CPA. There is a difference between contentions that merely allege an omission of information and those that challenge substantively and specifically how particular information has been discussed in a license application. McGuire, CLI-02-28, 56 NRC at 382-83.
30 Supplement 1, Encl. 1 at 6.4-23.
31 McGuire, CLI-02-28, 56 NRC at 383.
32 10 C.F.R. § 2.309(c)(1)(i) provides that part of showing good cause for a motion for leave to file a new or amended contention is that [t]he information upon which filing is based was not previously available.
Thus, there is no longer good cause to challenge what was in the CPA filed on March 31, 2025.
create a post hoc rationale to characterize its initial Contention 1 related to 10 C.F.R.
§ 50.34(a)(8), which was filed August 11, 2025, as a contention of adequacy, it is untimely and impermissible.
B.
Petitioners Amended Contention 1 is Inadmissible
- i.
The amended contention on 10 C.F.R. 50.34(a)(8) is inadmissible.
In its Motion, Petitioner states that Supplement 1 does not resolve issues raised in its initial Petition, but Petitioners statements are not adequately supported.33 Petitioner states that it is not likely that useful results will be available by the time the operating license is submitted or by the time the NRC acts on the LM-CPA and LME would be required to implement a far more abbreviated schedule for irradiation, testing, and post-irradiation examination than the actual timetable of the AGR program, which is not reasonably achievable.34 Such statements amount[] to generalized suspicions.35 The Commission has long held that bare assertions or conclusory statements, even by an expert, are not enough for contention admissibility.36 Petitioner adds that [d]etails of the test program, including peak fuel burnups to be achieved and peak fuel temperatures to be tested under accident conditions, remain absent from Supplement 1.37 Petitioner does not explain why this information is material to a finding the 33 Motion at 5.
34 Motion at 5 (citing Petition, Ex. E at 12 (Lyman Declaration)).
35 See Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, & 3), CLI-99-11, 49 NRC 328, 338 (1999);
Millstone, CLI-01-24, 54 NRC at 358-59.
36 See e.g., Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC 704, 714 (2012) (Bare assertions and speculation even by an expert, are insufficient to trigger a full adjudicatory proceeding.); Amergen Energy Co. (Oyster Creek Nuclear Generating Station), CLI-08-28, 68 NRC 658, 674 (2008) (Bare assertions and speculation, such as Citizens experts speculation that [i]t is... likely that an analysis that complies with the ASME Code would predict that the [cumulative usage factor] would become greater than one during the proposed period of extended operation, and that the environmental factors in the [license renewal application] and the [request for additional information] are probably non-conservative, do not supply the requisite support.); Interim Storage Partners LLC (WCS Consol. Interim Storage Facility), LBP-19-7, 90 NRC 31, 90 (2019) (A contention cannot be admitted on bare assertions and speculation alone.); Grand Gulf, LBP-04-19, 50 NRC at 289 (Neither mere speculation nor bare or conclusory assertions, even by an expert, alleging that a matter should be considered will suffice to allow the admission of a proffered contention.).
37 Motion at 5.
NRC must make on a construction permit application, as required by 10 C.F.R § 2.309(f)(1)(iv).
Petitioner also states that LME has not demonstrated that its proposed timeline for testing in Supplement 1 will yield sufficient results to validate the adequacy of the functional containment approach.38 In its Supplement 1, LME provides details in Table 6.4.2-1 regarding scope of work and periods of performance for various stages of fuel testing.39 LME also describes details of these various stages of fuel testing in Section 6.4.2.3.40 Merely asserting that LME failed to demonstrate how its proposed timeline in Supplement 1 will yield sufficient results because LME may use a different schedule than another testing campaign, with nothing more, lacks the specificity needed to proffer an admissible contention and amounts to a conclusory assertion.41 Bare assertions and speculation do not supply the requisite support.42 ii.
Petitioners new contention on 10 C.F.R. § 50.35(a) is inadmissible because it does not demonstrate a genuine dispute on a material issue of law or fact that is material to a finding the NRC must make on the construction permit application.
Petitioners new contention asserts that LMEs Supplement 1 fails to comply with the requirements of 10 C.F.R. § 50.35(a).43 Under 10 C.F.R. § 50.35(a), the Commission may issue a construction permit where the applicant has not supplied all of the technical information required to complete the application and support issuance of the construction permit if the Commission makes certain findings.44 Petitioner quotes a portion of this regulation in its Motion, emphasizing the portions of 10 C.F.R. § 50.35(a)(3) related to the research and development program, which must be reasonably designed to resolve any safety questions associated with features or components that require research and development. Petitioner also emphasizes 38 Motion at 5.
39 Supplement 1, Enc. 1 at 6.4-23 (ML25269A127).
40 Supplement 1, Enc. 1 at 6.4-21-6.4-22.
41 See Motion at 5.
42 Oyster Creek, CLI-08-28, 68 NRC at 674.
43 Motion at 5.
44 See 10 C.F.R. § 50.35(a)(1)-(4).
10 C.F.R. § 50.35(a)(4), which provides that based on the other findings in § 50.35(a), safety questions will be resolved at or before the latest date in the application for completion of construction.45 Petitioner raises concerns with the adequacy and accuracy of LMEs testing plan but does not explain why testing it believes is required is necessary for a construction permit application and otherwise fails to adequately support its contention. For example, Petitioner reiterates its experts claim that AGR testing uses compacts rather than pebbles and that this is a significant limitation.46 LME adds in Supplement 1 that one aspect of its fuel irradiation campaign is to demonstrate that AGR program fuel performance data is applicable to TRISO-coated UCO particles in fuel pebbles.47 Petitioner does not dispute or engage with this statement.
Petitioners expert also states that validation of as-manufactured defect rate assumptions is not possible.48 Petitioners support for this statement is that the TRISO-X fuel facility does not yet exist.49 Petitioners expert further states that it is not likely that statistically meaningful data on production-scale defect rates would be available for several years after [X-Energy produces its first pebble]that is, long after the NRC is scheduled to complete its review of the LM-CPA and the functional containment approach.50 Petitioner notes that there has been no testing of sufficiently representative fuel manufactured at a commercial scale51 and that Supplement 1 does not propose testing of sufficiently representative fuel at a commercial scale.52 Petitioner does not explain why such commercial scale fuel testing is necessary for 45 Motion at 6.
46 Id. at 7 (citing Lyman Declaration at 10).
47 Supplement 1, Enc. 1 at 6.4-21.
48 Motion at 6 (citing Lyman Declaration at 6).
49 Lyman Declaration at 6.
50 Id.
51 Motion at 6-7 (citing Lyman declaration at 11).
52 Motion at 7.
the NRC to make a finding on a construction permit application, as required by 10 C.F.R.
§ 2.309(f)(1)(iv). Petitioner also does not explain why the testing proposed in Supplement 1 is not sufficient to support a construction permit application, as required by 10 C.F.R.
§ 2.309(f)(1)(vi).
CONCLUSION While Petitioner continues to have representational standing to intervene in this proceeding, its new contention and amended Contention 1 fail to meet contention admissibility requirements in 10 C.F.R. § 2.309(f)(1). And, as the NRC Staff indicated in its December 3, 2025, notification to the Board and parties, LMEs September 26, 2025, Supplement 1 to its application provided the information on its testing plan that was previously missing. For the reasons above, the portion of Contention 1 related to 10 C.F.R. § 50.34(a)(8), as submitted on August 11, 2025, is moot, and the NRC Staff opposes the admission of Petitioners new contention and amended Contention 1 because they do not satisfy 10 C.F.R. § 2.309(f)(1).
Respectfully submitted,
/Signed (electronically) by/
Samuel K. Stephens Counsel for NRC Staff Mail Stop: O15-B04 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: 301-415-1581 E-mail: samuel.stephens@nrc.gov
/Executed in Accord with 10 CFR 2.304(d)/
Julie G. Ezell Counsel for NRC Staff Mail Stop: O15-B04 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: 301-287-9157 E-mail: julie.ezell@nrc.gov
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of LONG MOTT ENERGY, LLC (Long Mott Generating Station)
Docket No. 50-614-CP Certificate of Service Pursuant to 10 C.F.R. § 2.305, I hereby certify that the NRC STAFFS ANSWER TO SAN ANTONIO BAY ESTUARINE WATERKEEPERS AMENDED CONTENTION 1, has been filed through the NRCs E-Filing System this 19th day of December 2025.
/Signed (electronically) by/
Samuel K. Stephens Counsel for NRC Staff Mail Stop: O15-B04 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: 301-415-1581 E-mail: samuel.stephens@nrc.gov