ML25353A610
| ML25353A610 | |
| Person / Time | |
|---|---|
| Site: | 05000614 |
| Issue date: | 12/19/2025 |
| From: | Lighty R, Polonsky A Long Mott Energy, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 57563, ASLBP 25-991-01-CP-BD01, 50-614-CP | |
| Download: ML25353A610 (0) | |
Text
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 December 19, 2025 LONG MOTT ENERGY, LLCS ANSWER TO WATERKEEPERS DECEMBER 5, 2025 MOTION TO AMEND CONTENTION 1 Pursuant to 10 C.F.R. § 2.309(i)(1) and the Boards Order,1 Long Mott Energy, LLC (LME) submits this Answer opposing Waterkeepers December 5, 2025 Motion to Amend Contention 1 (Motion).2 For the reasons set forth below, the Board should DENY the Motion.
I.
BACKGROUND Relevant to this Motion, 10 C.F.R. § 50.34(a)(8) requires that the PSAR identify any structures, systems, or components (SSCs) which require research and development
[(R&D)] to confirm the adequacy of their design. R&D is narrowly defined in Section 50.2 to include theoretical and experimental activities (which the Commission has contrasted with certain planned qualification activities).3 If there are such SSCs, then Section 50.34(a)(8) requires the PSAR to identify and describe the R&D program and a schedule showing completion at or before the latest date stated in the application for completion of construction of the facility. The latest date for completion of construction of LMGS is 2033.4 1
Memorandum and Order (Initial Prehearing Order) (Aug. 28, 2025) (ML25240B507).
2 San Antonio Bay Estuarine Waterkeepers Motion to Amend Contention 1 Based on PSAR Supplement 1 (Dec. 5, 2005) (ML25339A186) (Motion).
3 See Kairos Power LLC (Hermes 2 Test Reactor Facility), CLI-24-3, 100 NRC 135, 142 n.46 (2024).
4 CPA, Part I at I-I (ML25090A059).
2 One basis for Contention 1 alleged that the CPA fails to satisfy 10 C.F.R. § 50.34(a)(8) because X-Energy is unlikely to be able to conduct the necessary testing and obtain all results by [2033].5 But, as LME explained in its Answer, Waterkeeper forgot to address the definition of R&D in 10 C.F.R. § 50.2.6 As a result, the contention lacked an explanation of how or why the necessary testing activities satisfy the codified definition of R&D, which is a prerequisite to the applicability of Section 50.34(a)(8).7 As the Commission has often repeated, [a]n unexplained assertioneven by an expertstanding alone is not enough to support a contention.8 This failure deprived the Board of the ability to evaluate Waterkeepers theory that such schedular information was required to be presented in the CPA.9 Waterkeepers Reply did not refute LMEs argument.10 The NRC Staff concluded that Waterkeepers claim was admissible because it identified the absence of a schedule showing the testing program will yield results before 2033.11 However, as did Waterkeeper, the NRC Staff overlooked the crucial gap in the supporting basis 5
[Waterkeeper]s Petition to Intervene and Request for Hearing at 20-21 (Aug. 11, 2025) (ML25223A335)
(Petition). Given Waterkeepers ongoing conflation of regulatory requirements (or outright challenges to the regulations themselves, see Reply at 19-20), it remains unclear whether this vague reference to the necessary testing even invokes testing required at the CP stage versus that at the OL stage (e.g., 10 C.F.R. § 50.43(e)).
6 Waterkeeper incorrectly characterized LMEs Answer as presenting a merits argument that fuel testing does not fall within the definition of research and development. Motion at 3 (citing [LME] Answer to [Petition] at 48 (Sept. 5, 2025) (ML25248A335) (LME Ans. to Pet.). That is inaccurate. LMEs Answer merely highlighted Waterkeepers failure to address that definition.
7 LME Ans. to Pet. at 47-48.
8 Powertech (USA) Inc. (Dewey-Burdock In Situ Uranium Recovery Facility), CLI-25-5, 102 NRC __, __
(July 15, 2025) (slip op. at 7) (citation omitted).
9 Likewise, the Board cannot cure this defect by supplying its own theory of how or why these activities might satisfy the definition. See, e.g., DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 2), CLI-15-18, 82 NRC 135, 141 (2015) (Licensing boards may not supply information that is lacking in a contention.)
10 In its Motion (at 7 & n.18), Waterkeeper dismissively characterizes the satisfaction of § 50.2 as hardly debatable, pointing to the NRC Staffs Answer (which also did not analyze this question), a regulatory guidance document (with no obvious connection here), and a safety evaluation (for a different licensing proceeding). None of those documents purport to compare the specific TRISO-X testing activities to the definition of R&D in § 50.2 or identify any other reason why Waterkeeper would be excused from the threshold pleading requirement to articulate reasoned bases for its proposed contentions.
11 NRC Staffs Answer to [Petition] at 12-16 (Sept. 5, 2025) (ML25249A000).
3 for this claimnamely, the absence of any supporting reasons for the petitioners belief12 that the TRISO-X fuel testing activities fall within the codified definition of R&D.
On September 26, 2025, LME filed PSAR Supplement 1, which revised PSAR Section 6.4.2.3, Fuel Qualification, Testing, and Programs, to add a schedule showing that TRISO-X fuel qualification and testing activities would be complete before 2033.13 The NRC Staff then notified the Board that PSAR Supplement 1 appears to be sufficient to moot the portion of Contention 1 related to [Section] 50.34(a)(8).14 In its Motion, Waterkeeper argues that PSAR Supplement 1 does not moot its original claim related to § 50.34(a)(8)15 and requests leave to file Amended Contention 1. LME timely files this Answer to the Motion.
II.
THE MOTION DOES NOT DEMONSTRATE GOOD CAUSE A petitioner may file new and amended contentions only if it establishes good cause, which requires a showing that: (1) the information upon which the amended or new contention is based was not previously available; (2) the information upon which the filing is based is materially different from information previously available; and (3) the filing has been submitted in a timely fashion based on the availability of the subsequent information.16 12 10 C.F.R. § 2.309(f)(1)(vi).
13 Letter from C. OConnor, LME, to Document Control Desk, NRC, Supplement #1 to the [PSAR] for the Long Mott Generating Station [CPA] (Sept. 26, 2025) (Package ML25269A125) (PSAR Supplement 1).
14 Staff Notification Regarding Supplemental Information at 5 (Dec. 3, 2025) (ML25337A133).
15 LME maintains that Waterkeepers § 50.34(a)(8) claim in Contention 1 was, and remains, inadmissible due to Waterkeepers failure to address the definition of R&D in § 50.2. However, to the extent the Board may have viewed Waterkeepers § 50.34(a)(8) claim in Contention 1 as admissible, LME agrees that PSAR Supplement 1 mooted that claim in full. To the extent Waterkeeper argues that PSAR Supplement 1 does not satisfy
§ 50.34(a)(8) because its cover letter maintains that the testing does not meet the § 50.2 definition of R&D (see Motion at 4), that argument is unpersuasive for two reasons. First, the cover letter is not part of the CPA, which speaks for itself. Second, while the cover letter acknowledged the potential for differing views on the applicability of the § 50.2 definition of R&D here, it tendered PSAR Supplement 1 for the express purpose of satisfying § 50.34(a)(8) to the full extent that it applies.
16 10 C.F.R. § 2.390(c)(1).
4 PSAR Supplement 1 was not available as of the original deadline for filing contentions, and LME agrees that it contains certain new information that is materially different from that previously available. Specifically, PSAR Supplement 1 provided, for the first time, a schedule for the TRISO-X fuel qualification and testing program. However, to satisfy the good cause requirement, it is not enough merely to reference a document that contains materially new information; the movant must demonstrate that its filing is actually based on the portion that is new and materially different. Here, the Motion does not.
Amended Contention 1 does not present a challenge to the detailed schedule for the testing program in PSAR Supplement 1. Indeed, the Motion mentions that schedule only once, in a background section.17 Instead, the Motion seeks leave to argue that the CPA satisfies neither 10 C.F.R. § 50.35(a),18 nor the substantive requirements19 of 10 C.F.R. § 50.34(a)(8), under three theoriesnone of which are based on any new and materially different information.
First, the original and amended contentions argue that completion of fuel testing by the latest date for construction of LMGS (2033) is not reasonably achievable.20 But PSAR Supplement 1 did not alter the latest date for construction of LMGS. Second, Waterkeeper argues that the CPA omits certain details (fuel burnups and temperatures) and an overall sufficiency justification for the test program.21 But, Waterkeeper identifies no way in which PSAR Supplement 1 materially altered PSAR Section 6.4.2.3 on these issues. Third, 17 Motion at 2.
18 Waterkeeper identifies no reason it could not have raised its Section 50.35(a) theory at the outset. Cf. La.
Energy Servs. L.P. (Natl Enrichment Facility), CLI-04-25, 60 NRC 223, 225 (2004) (licensing boards cannot allow petitioners to disregard our timeliness requirements and add new bases or new issues that simply did not occur to [them] at the outset.) (citation omitted).
19 Motion at 2.
20 Id. at 5.
21 Id.
5 Waterkeeper argues that the fuel qualification program does not include testing of as-manufactured fuel from a commercial scale facility.22 Again, PSAR Supplement 1 does not alter the CPA on that topic. None of that informationon which the filing is based differs materially from the information Waterkeeper relied on for its original contention. It is exactly the same. And the Motion does not articulate any basis to conclude otherwise.
In sum, although PSAR Supplement 1 is new and contains some materially different information, the Motion is not based on, and does not purport to dispute, that specific new information. Accordingly, the Motion should be DENIED because it does not satisfy the good cause standard in 10 C.F.R. § 2.309(c)(1).
III.
AMENDED CONTENTION 1 IS INADMISSIBLE Even if a movant demonstrates good cause, the motion cannot be granted unless the new or amended contention also meets the admissibility criteria in Section 2.309(f)(1).23 As explained below, Amended Contention 1 does not.
A.
Fuel Testing by 2033 Contention 1 alleged that the CPA fails to satisfy 10 C.F.R. § 50.34(a)(8) because X-Energy is unlikely to be able to conduct the necessary testing and obtain all results by
[2033].24 The Petition did not explain that conclusion but referred generally, without citation to any specific point, to Dr. Lymans Declaration.25 Although not clear,26 this assertion may 22 Id. at 5 and 7.
23 10 C.F.R. § 2.309(c)(4).
24 [Waterkeeper]s Petition to Intervene and Request for Hearing at 20-21 (Aug. 11, 2025) (ML25223A335)
(Petition).
25 Id.
26 Contra Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2), CLI-99-4, 49 NRC 185, 194 (1999) (We do not expect our adjudicatory boards, unaided by the parties, to sift through the parties pleadings to uncover and resolve arguments not advanced by litigants themselves. The burden of setting forth a clear and coherent argument... is on the petitioner.).
6 have sought to rely on three statements from Dr. Lyman: (1) his reference to a different program (i.e., the AGR program), observing that it took more than 10 years from fabrication of the fuel through irradiation and post-irradiation examination, (2) his statement that, in the absence of a testing schedule in the CPA, it was not clear whether testing activities for the TRISO-X fuel could be completed during the 8-year window between now (2025) and 2033, and (3) his unexplained speculation that such a schedule is not reasonably achievable.27 But Dr. Lyman offered no technical basis for that speculation; no scope comparison between the programs; no justification for why a different program, involving different fuel, for a different reactor, under different circumstances presents a bounding schedule metric; and no theory of how or why this single data point demonstrates a practical, technical, financial, or legal impossibility.
PSAR Supplement 1 subsequently augmented the PSAR with an actual schedule, supplanting the need to speculate about it, and addressing Dr. Lymans statement that the absence of a schedule made it not clear whether the activities would be completed by 2033.
Importantly, that schedule shows that two of the testing activities already have begun; and it provides the most up-to-date information regarding estimated completion dates for those activities, showing that the testing activities will conclude in 2030, three years before 2033.
Notably, Amended Contention 1 does not directly engage with any of this new schedule information. It does not acknowledge or critique the milestones or performance periods. And Amended Contention 1 is not supported by any new declarations or affidavits. Instead, Waterkeeper attempts to recycle statements from an earlier declaration (prepared before PSAR Supplement 1 was submitted) providing a generic assertion that completion of fuel testing activities is not reasonably achievable by 2033. But that statement, alone, is inadequate here 27 Lyman Decl. at 12.
7 for the same reason it was beforebecause it is not accompanied by a reasoned explanation.
That is a threshold requirement for admissibility; and it remains unmet here.
Waterkeeper again offers no technical basis; no comparison of the program scopes and practical circumstances around the AGR program versus the TRISO-X program; and no theory of impossibility or identification of facts that might support such a theory. Waterkeeper offers only a baseless, speculative conclusionand it comes from an outdated declaration in which the declarant never examined PSAR Supplement 1; never confronted its milestone schedule; and does not acknowledge key facts, including that the TRISO-X test fuel fabrication is already complete and that irradiation activities are currently underway (both of which are reflected in PSAR Supplement 1 and uncontested by Waterkeeper here). Under these circumstances, Waterkeepers claim remains inadmissible because it fails to dispute the new CPA content, as modified by PSAR Supplement 1, and still lacks an explanation for its conclusory statement that completion of the testing program by 2033 is not reasonably achievable, contrary to 10 C.F.R.
§ 2.309(f)(1)(v) and (vi).
B.
Fuel Testing Details and Justification Waterkeeper also argues that [d]etails of the test program... remain absent from
[PSAR] Supplement 1.28 Specifically, Waterkeeper expects LME to provide peak fuel burnups to be achieved and peak fuel temperatures to be tested under accident conditions, and a demonstrat[ion of] how [LMEs] proposed timeline in Supplement 1.... will yield sufficient results....29 But these demands fail to raise a genuine dispute for multiple reasons.
First, Waterkeeper offers no explanation of why such details are required by Section 28 Motion at 5.
29 Id.
8 50.34(a)(8).30 That regulation does not mention burnups, temperatures, or sufficiency demonstrations at all; it requires identification of SSCs; identification and description of the program; and presentation of a schedule for completionall of which PSAR Supplement 1 unquestionably provides. So, to the extent this claim is one of omission, it is plainly wrong.
Second, to the extent these comments were intended to claim inadequacy, they are unaccompanied by any explanation, contrary to 10 C.F.R. § 2.309(f)(1)(v) and (vi). Even if guessing were required (it is not), no such inadequacy is apparent. PSAR Supplement 1 describes the irradiation program as including [i]rradiation of fuel pebblesto demonstrate that fuel performance requirements are met under the Xe-100 normal operation fuel performance envelope and [p]ost-irradiation heating and oxidation tests of irradiated fuel pebbles to demonstrate that fuel performance requirements are met during licensing basis event [(LBE)]
conditions.31 Any reasoned reading of these statements would indicate that the testing will envelope the normal operation and LBE conditions (core burnups, temperatures, etc.) described in the CPA. Nothing more is required; and Waterkeeper offers no basis to conclude otherwise.
Accordingly, these unexplained and unsupported claims fail to identify a genuine dispute.
C.
Testing of Commercial Scale Fuel Finally, Waterkeeper argues that § 50.34(a)(8) or § 50.35(a) or both (it is not clear) cannot be satisfied unless the fuel testing program includes testing of as-manufactured fuel from a commercial scale fuel fabrication facility.32 However, Waterkeeper has not articulated a theory of why that is required and wholly disregards relevant information in the CPA.
30 Waterkeeper does not appear to invoke 10 C.F.R. § 50.35(a) for these claims. But even if the Motion could be read to do so, that basis would fare no better because Waterkeeper provided no explanation of its theory.
31 PSAR at 6.4.2.3 (as modified by PSAR Supplement 1).
32 Motion at 6-7.
9 Neither § 50.34(a)(8) nor § 50.35(a) mentions as-manufactured fuel or commercial scale fuel fabrication facilities. Thus, Waterkeeper does not appear to be alleging a facial violation of either regulation. Instead, Waterkeeper offers a broader assertion (without explaining a connection to the text of §§ 50.34(a)(8) or 50.35(a)) that fuel failure fractions used in the X-energy safety analysis approach must bound actual manufacturing data.33 Waterkeeper then offers a bare conclusion that the test fuel used in the TRISO-X testing program will not be sufficiently representative of the ultimate commercial-scale fuel.34 But Waterkeeper fails to explain any reason that the TRISO-X test fuel, per se, would be materially non-representative it only speculates. And perhaps more importantly, Waterkeeper wholly fails to acknowledge the relevant information in the CPA addressing this exact topic.
For example, the CPA confirms that the test fuel pebble elements (used in the testing program) will be representative of the Xe-100 reactor fuel (that eventually will be manufactured at commercial scale for the LMGS).35 The CPA also explains how that representativeness will be ensured. Specifically, it is achieved through the establishment of fuel product, equipment, and feedstock specifications, coupled with fabrication processes and quality control / quality assurance procedures to demonstrate that those specifications have been met.36 And the CPA likewise makes clear that the fuel specifications (which include fuel failure fractions) are part of the licensing basis for the plant, meaning that any future commercial-scale fuel that does not conform to such specifications (as verified in accordance with an NQA-1 quality assurance / quality control program) could not be loaded into the facility.37 Waterkeeper 33 Motion at 6.
34 Id. at 7.
35 PSAR at 6.4-21 (as modified by PSAR Supplement 1).
36 Id.
37 See generally LME Ans. to Pet. at 43 (explaining this in further detail).
10 neither confronts nor disputes any of these elements, individually, nor the overall approach, more broadly, that LME proposes to ensure that the test fuel is sufficiently representative of the commercial fuel in all material respects. Nor does Waterkeeper offer any explanation of why this approach is unacceptable, impractical, or non-compliant with any applicable requirement.
Waterkeeper altogether disregards, rather than disputes, this highly relevant information.
Waterkeeper wants commercial-scale fuel fabrication facilities to be designed, licensed, constructed, and fully operational before any potential applicant planning to use fuel therefrom could even file a CPA. But that approach finds no support in the regulations, guidance, precedent, or any other sourceand Waterkeeper identifies none. Waterkeeper cannot conjure a dispute regarding the representativeness of the test fuel by ignoring the relevant portions of the CPA addressing that exact topic. Accordingly, Waterkeepers demand for testing of commercial scale fuel fails to demonstrate a material dispute with the CPA.
IV.
CONCLUSION As established above, the Motion fails to establish good cause and Amended Contention 1 is inadmissible. For either or both of those reasons, the Board should DENY the Motion.
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 19th day of December 2025
DB3/ 205215895.5 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 December 19, 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 ANSWER TO WATERKEEPERS DECEMBER 5, 2025 MOTION TO AMEND CONTENTION 1 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