ML25363A146
| ML25363A146 | |
| Person / Time | |
|---|---|
| Site: | 05000614 |
| Issue date: | 12/29/2025 |
| From: | Lighty R, Polonsky A Long Mott Energy, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 57566, ASLBP 25-991-01-CP-BD01, 50-614-CP | |
| Download: ML25363A146 (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 29, 2025 LONG MOTT ENERGY, LLCS ANSWER TO WATERKEEPERS DECEMBER 12, 2025 MOTION TO AMEND CONTENTION 4 Pursuant to 10 C.F.R. § 2.309(i)(1) and the Boards Orders,1 Long Mott Energy, LLC (LME) submits this Answer opposing Waterkeepers December 5, 2025 Motion to Amend Contention 4 (Motion).2 For the reasons set forth below, the Board should DENY the Motion.
I.
BACKGROUND In Contention 4, Waterkeeper argued that LMEs Environmental Report (ER) fails to comply with applicable regulations because the NRCs Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel (CS-GEIS) allegedly applies only to light-water reactors, whereas LME was required to [but allegedly did not] conduct an assessment of the impacts of continued storage of spent nuclear fuel beyond the licensed lifetime of the reactor.3 As explained in LMEs Answer (and not refuted in Waterkeepers Reply), that claim fails to satisfy § 2.309(f)(1) because, among other reasons, the Petition did not actually 1
Memorandum and Order (Initial Prehearing Order) (Aug. 28, 2028) (ML25240B507); Memorandum and Order (Requesting Briefing Regarding Portion of Contention 4 and Establishing Schedule for Reply to Motion to Amend Contention 1) (Dec. 11, 2025) (ML25345A462); Memorandum and Order (Establishing Schedule for Answers to Motion to Amend Contention 4) (Dec. 17, 2025) (ML25351A186).
2 San Antonio Bay Estuarine Waterkeepers Motion to Amend Contention 4 Based on ER Supplement 2 (Dec. 12, 2005) (ML25346A278) (Motion) (including a declaration from Dr. Lyman as Encl. A).
3
[Waterkeeper]s Petition to Intervene and Request for Hearing at 49-50 (Aug. 11, 2025) (ML25223A335)
(Petition) (citing NUREG-2157 (Sept. 2014) (ML14196A105) (CS-GEIS)).
2 identify any applicable regulations that purportedly imposed such a require[ment].4 Waterkeepers pleading failure deprive[d] the Board of the ability to make the necessary, reflective assessment5 of Waterkeepers assertion that such information was required to be presented in the ER, which goes directly to the materiality of the claim.6 The NRC Staff stated that Waterkeepers claim was admissible as a contention of omission,7 but did not point to any Waterkeeper-identified source of, or a theory for, this alleged requirement. Instead, the NRC Staff glossed over Waterkeepers pleading defect and supplied its own theory of why such information purportedly was required.8 As explained below in response to Amended Contention 4, this theory is legally erroneous because it misreads the regulations in 10 C.F.R. Part 51 to require a discussion that two different regulations expressly state is not required. Furthermore, controlling case law prevents the Board from transplanting the NRC Staffs theory into the contention for admissibility purposes.9 Separately, the NRC Staff issued, as part of its environmental review, a request for confirmation of information (RCI), asking LME, would the form of the fuel kernels be similar to the Fort St. Vrain [(FSV)]?10 LME responded (ER Supplement 2) that [t]he fuel kernels used by the Xe-100 at [Long Mott Generating Station (LMGS)] will be comparable to those 4
[LME]s Answer to [Petition] at 92 (Sept. 5, 2025) (ML25248A335) (LME Ans. to Pet.).
5 USEC Inc. (Am. Centrifuge Plant), CLI-06-10, 63 NRC 451, 472 (2006) (citation omitted) 6 See Powertech (USA) Inc. (Dewey-Burdock In Situ Uranium Recovery Facility), CLI-25-5, 102 NRC __, __
(July 15, 2025) (slip op. at 7) (unexplained assertions are insufficient as contention bases).
7 NRC Staffs Answer to [Petition] at 42 (Sept. 5, 2025) (ML25249A000) (NRC Staff Ans. to Pet.).
8 Id. at 39-41 & n.188.
9 See, e.g., DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 2), CLI-15-18, 82 NRC 135, 144 (2015) (licensing boards may not supply information that is lacking in a contention.); Balt. Gas & Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units 1 & 2), CLI-98-14, 48 NRC 39, 41 (1998) (it is the petitioners responsibility to provide the necessary information to satisfy the basis requirement for the admission of its contentions and demonstrate that a genuine dispute exists.).
10 Email from J. OHara, NRC, to M. Gorden, X-Energy, [LMGS] Environmental Information Needs Revision 5, Attach. at 17 (Sept. 16, 2025) (ML25259A216).
3 used by the [high temperature gas-cooled reactor (HTGR)] at [FSV].11 Notably, spent fuel from FSV was analyzed in the CS-GEIS.12 The NRC Staff then notified the Board that this information appears to be sufficient to moot the portion of Contention 4 related to the environmental effects of continued storage of spent fuel generated by [LMGS].13 In its Motion, Waterkeeper argues that ER Supplement 2 does not resolve its original Contention 4 and requests leave to file Amended Contention 4. LME timely files this Answer to the Motion.
II.
LMES POSITION REGARDING ORIGINAL CONTENTION 4 Waterkeepers spent fuel storage claim in Contention 4 was, and remains, inadmissible for the reasons identified in LMEs Answer. But it is now inadmissible for an additional reasonbecause this portion of the original contention was mooted by ER Supplement 2. ER Supplement 2 contains information relevant to spent fuel storage. Thus, the original claim has been overtaken by events. The Commission has explained that, when the state of the application that existed when a challenge was filed no longer exists (for example, due to an application supplement or RAI response), then the challenge must be disposed of or modified.14 The Motion seeks to modify Contention 4. If the Motion is denied, then Contention 4 must be disposed of as inadmissible.15 11 Letter from C. OConnor, LME, to NRC Document Control Desk, Confirmatory Information Regarding the
[ER] for the [LMGS CPA] at [PDF p.4] (Oct. 17, 2025) (ML25290A123).
12 See Continued Storage of Spent Nuclear Fuel; Final Rule, 79 Fed. Reg. 56,238, 56,243 (Sept. 19, 2014)
(CS-Rule).
13 Staff Notification Regarding Supplemental Information at 5 (Dec. 3, 2025) (ML25337A133).
14 See, e.g., USEC, Inc. (Am. Centrifuge Plant), CLI-06-9, 63 NRC 433, 444 (2006).
15 This applies to contentions of omission (see Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-28, 56 NRC 373, 383 (2002) ([w]here a contention alleges the omission of particular information or an issue from an application, and the information is later supplied by the applicant..., the contention is moot) as well as contentions of sufficiency (see Rules of Practice for Domestic Licensing Proceedings Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,170 (Aug. 11, 1989) (contentions are inadmissible if they do not confront all pertinent information)).
4 III.
THE MOTION DEMONSTRATES GOOD CAUSE IN PART Motions for new or amended contentions may be granted only upon a finding of good cause, which requires that the contention be based on materially new information and submitted in a timely fashion.16 ER Supplement 2 was not previously available and contains certain new information. Specifically, ER Supplement 2 included a single sentence confirming that the fuel kernels at LMGS are comparable to FSVs fuel kernels. To the extent the Motion seeks leave to challenge that statement, it satisfies the good cause requirement.
However, the Motion also seeks leave to raise new arguments on other subjects, including as to the comparability of the fuel elements and the characteristics of the post-irradiation spent nuclear fuel.17 But ER Supplement 2 said nothingnot one wordabout those other subjects. These arguments are plainly based on information that has been available to Waterkeeper for many months or years.18 And Waterkeeper identifies no reason why LMEs statement about the fuel kernels is related to, or somehow opened the door for, these other challenges. To the extent Waterkeeper wanted to challenge the applicability of the CS-GEIS to LMGS based on long-available information about fuel elements or spent fuel (none of which was first supplied in ER Supplement 2), its opportunity was at the outset of this proceeding.19 This is simply an improper attempt to use LMEs limited-scope RCI response to skirt the contention timeliness requirements.20 Accordingly, the Motion does not satisfy the good cause requirement as to these other untimely arguments.
16 10 C.F.R. § 2.390(c)(1).
17 Motion at 6-7; id., Encl. A at 3-5.
18 Id., Encl. A at 3-5 (citing LMEs ER and a 2010 safety analysis report for FSV).
19 See, e.g., Interim Storage Partners, LLC (WCS Consol. Interim Storage Facility), CLI-21-9, 93 NRC 244, 249-250 (2020) (Commission affirming licensing board rejection of new and amended contentions as untimely because they could have been raised based on information in [the applicants] environmental report).
20 See La. Energy Servs. L.P. (Natl Enrichment Facility), CLI-04-25, 60 NRC 223, 225 (2004) (attempts to add new bases that simply did not occur to [petitioners] at the outset are untimely and impermissible).
5 IV.
AMENDED CONTENTION 4 IS INADMISSIBLE The Motion should be denied because Amended Contention 4 is inadmissible.21 A.
Waterkeeper Identifies No Requirement for the Analysis It Demands As with its original claim, Waterkeeper continues to argue that there exists a requirement that [LMEs ER] assess the environmental impacts of the continued storage of spent nuclear fuel beyond the licensed life for operation of a reactor.22 But Waterkeeper still does not fulfill its pleading burden to identify any such requirement. Nor does one exist. The plain text of the NRCs Part 51 regulations (namely, those applicable to construction permit applications) states the exact opposite.
Specifically, 10 C.F.R. § 51.23 states that the environmental reports described in
§§ 51.50, 51.53, and 51.61 are not required to discuss the environmental impacts of spent nuclear fuel storage... for the period following the term of the reactor operating license....23 LMEs ER is for a construction permit, as described in § 51.50(a). Thus, it is not required to contain this discussion. For the avoidance of doubt, § 51.50(a) deliberately reiterates: As stated in § 51.23, no discussion of the environmental impacts of the continued storage of spent fuel is required in this report. Simply put, Waterkeepers claim that the ER was required to include this discussion is unsupported, contrary to § 2.309(f)(1)(v); and its criticism of the ERfor allegedly not (or inadequately) discussing a topic it is not required24 to discussdoes not identify a genuine dispute on a material issue of law or fact, contrary to § 2.309(f)(1)(vi).
21 See 10 C.F.R. § 2.309(c)(4).
22 Motion at 2.
23 Emphasis added.
24 10 C.F.R. § 51.23(b); accord id. § 51.50(a).
6 B.
To the Extent Waterkeeper Seeks to Adopt the NRC Staffs Theory, It Is Legally Erroneous Furthermore, even if Waterkeepers claim could be construed, generously, as seeking to adopt the NRC Staffs theory,25 the result would be the same. That is because the NRC Staffs theory is legally erroneous. Specifically, the NRC views § 51.23 as having limited applicability.26 But the Staff attempts to insert a limit not found in the regulation itself. That is not a lawful construction of the regulation.
The ER content requirements in 10 C.F.R. §§ 51.23(b) and 51.50(a) specifyin perfect harmonythat construction permit ERs are not required to analyze the environmental impacts of continued storage of spent nuclear fuel. The text contains no limitations; no caveats; and no exclusions. It is not ambiguous. The U.S. Supreme Court has long held that, if the meaning of a codified legal requirement is plain on its face (i.e., clear), then tribunals must enforce that meaning regardless of any other considerations.27 Identifying a textual ambiguity is a prerequisite to examining any external sources to discern the intent of that text. This is the cardinal rule for interpreting legal requirements.28 Because 10 C.F.R. §§ 51.23(b) and 51.50(a) are not facially ambiguous, the regulations must be interpreted as written.
In contrast, the NRC Staff points to statements outside of the regulatory text (from the CS-GEIS and Statements of Consideration) for the proposition that the CS-GEIS cannot provide a technical basis, standing alone, to satisfy the NRCs NEPA obligations in this proceeding.29 25 See, e.g., [Waterkeeper]s Reply in Support of [Petition] at 35 (Sept. 12, 2025) (ML25258A244) (stating Waterkeepers view that the Staff correctly analyzed the original contention).
26 NRC Staff Ans. to Pet. at 41 n.188.
27 E.g., United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989) ([W]here... the statutes language is plain, the sole function of the courts is to enforce it according to its terms. (citation omitted)).
28 Conn. Natl Bank v. Germain, 503 U.S. 249, 253 (1992); see id at 253-254 (When the words of a statute are unambiguous,... judicial inquiry is complete. (quoting Rubin v. United States, 449 U.S. 424, 430 (1981)).
29 NRC Staff Ans. to Pet. at 39-41 & n.188 (citing CS-GEIS & CS-Rule).
7 Even if so, that circumstance does not retroactively insert a non-textual limitation into a codified regulation. If the NRC promulgates a rule through notice and comment rulemaking and later discovers that the plain text of that rule was somehow inadequate, imprudent, or overbroad, the agency cannot simply declare a different rule by fiat; it must conduct another rulemaking.30 As explained below, the NRC already has initiated such a rulemaking here.31 Nevertheless, the adequacy of the technical basis for 10 C.F.R. § 51.23 has no bearing on whether LMEs ER complies with the ER-content requirements in Part 51. NEPA directly imposes requirements only on federal agencies.32 Those requirements flow down to federal license applicants only to the extent directed by the agency,33 which the NRC does via Part 51.
Presumably, the NRC will supply (in its environmental document) all information necessary to comply with NEPA, including addressing any potential gaps in the technical basis of the CS-GEIS.34 But an applicant cannot be faulted for not supplying NEPA-related information that the agency, itself, told the applicantunambiguously, via codified rulethat it was not required to supply. Any other result would be illogical, arbitrary, and capricious.
Furthermore, if Waterkeeper had wanted to challenge the adequacy or applicability of the CS-GEIS or the generic regulations in 10 C.F.R. §§ 51.23(b) and 51.50(a) in this case-specific proceeding, its recourse was to file a waiver petition pursuant to 10 C.F.R. § 2.335.35 It did not.
30 See, e.g., Perez v. Mortg. Bankers Assn, 575 U.S. 92, 102 (2015) (the Administrative Procedure Act mandate[s] that agencies use the same procedures when they amend or repeal a rule as they used to issue the rule in the first instance) (citing FCC v. Fox Television Stations, Inc., 556 U. S. 502, 515 (2009)).
31 Notably, the proposed rule would not alter a single word of the current text of § 51.23, which is an implicit acknowledgement that the current text contains no limitation excluding non-light water reactors.
32 NEPA § 102 (42 U.S.C. § 4332) (imposing requirements on all agencies of the Federal Government).
33 NEPA § 102(A) (42 U.S.C. § 4332(A)) (giving agencies discretion to identify and develop methods and procedures as needed to facilitate the agencys NEPA compliance).
34 See 10 C.F.R. § 2.309(f)(2).
35 Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, & 3), CLI-99-11, 49 NRC 328, 334 (1999) (petitioners may not demand an adjudicatory hearing to attack generic NRC requirements or regulations, or to express generalized grievances about NRC policies.).
8 As a result, its challenge amounts to a collateral attack on the regulations themselves, contrary to 10 C.F.R. § 2.335 and 2.309(f)(1)(iii)-(vi), and must be rejected. That result would be consistent with recent Commission-affirmed licensing board decisions rejecting highly similar contentions on these grounds.36 The Board should do the same here.
C.
This Issue Is Not Litigable Because It Is the Subject of a Rulemaking Waterkeeper claims the CS-GEIS is inapplicable to LMGS because it applies only to light-water reactors.37 But, the NRC is proposing to codify a generic conclusion, based on an updated technical basis, that the CS-GEIS conditionally applies to all new reactors.38 The Commission has explained that licensing boards should not accept in individual license proceedings contentions which are (or are about to become) the subject of general rulemaking by the Commission.39 That is the case here; and issuance of the final rule is imminent.40 Accordingly, it would be counterproductive (and contrary to longstanding agency policy) to initiate litigation on an issue that by all accounts very soon will be resolved generically.41 This is yet another reason to reject the contention.
36 See Holtec, Intl (HI-STORE Consol. Interim Storage Facility), LBP-19-4, 89 NRC 353, 395 (2019), affd CLI-20-4, 91 NRC 167, 183-185 (2019) (rejecting a challenge to an ER, based on a claim the CS-GEIS did not cover that facility, reasoning that [§ 51.23(b)] explicitly states that an applicants [ER] is not required to discuss [continued storage], whereas the petitioner did not request a waiver under § 2.335).
37 Motion at 3. This statement is factually inaccurate because the CS-GEIS evaluated FSV, which is an HTGR, not a light-water reactor. See supra n.12.
38 Generic Environmental Impact Statement for Licensing of New Nuclear Reactors; Proposed rule, 89 Fed. Reg.
80,797, 80,806 (Oct. 4, 2024).
39 Oconee, CLI-99-11, 49 NRC at 345 (quoting Potomac Elec. Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 AEC 79, 85 (1974)).
40 See Planned Rulemaking Activities; Generic Environmental Impact Statement for Licensing of New Nuclear Reactors; https://www.nrc.gov/reading-rm/doc-collections/rulemaking-ruleforum/active/ruledetails?id=1139 (showing the estimated Final Rule Publication Date as 6/1/2026, which is before the NRCs review of LMEs CPA is expected to be complete); see also [LME] - [LMGS] Xe-100 Power Reactor Application, https://www.nrc.gov/reactors/new-reactors/advanced/who-were-working-with/applicant-projects/long-mott (showing the Final Safety Evaluation has a targeted completion date of November 2026).
41 Oconee, CLI-99-11, 49 NRC at 346.
9 D.
Waterkeeper Fails to Identify a Material Dispute Regarding the Fuel Kernels Even if Waterkeeper had satisfied its pleading burden to identify a requirement with specificity; and even if it had done so based on a valid legal theory; and even if this issue was not the subject of an imminent rulemaking (none of which are true here), Amended Contention 4 still would be inadmissible because Waterkeeper does not explain why the LME and FSV fuel kernels are different in some material way, i.e., one that would make the CS-GEIS inapplicable.
The Petition offers no factual comparison at all; and the declaration offers only one point of contrast, observing that the LMGS kernels will be UCO enriched up to 15.5 weight percent and that the FSV kernels were a mixture of uranium carbides enriched up to 93 percent plus thorium carbides.42 But neither explain why this particular difference would be material to determining the applicability of the CS-GEIS. Nor is any such theory obvious. In fact, this comparison appears to support a conclusion that the CS-GEIS is applicable here because it indicates that the FSV kernels (93% enrichment) are bounding of the LMGS kernels (15.5%
enrichment). That undercuts, rather than supports, Waterkeepers claim. And Waterkeeper fails to show otherwisebecause it offers no explanation at all. Far more is required to demonstrate a genuine dispute on a material issue.
Lastly, Waterkeeper criticizes LME for allegedly fail[ing] to offer any support for its conclusory statement regarding the comparability of the fuel kernels.43 But Waterkeeper appears to misunderstand the RCI process. As explained in NRC guidance, RCIs are used when the Staff already has access to the relevant factual information (as Waterkeeper has for many 42 Motion, Encl. A at 3 ¶ 11.
43 Id. at 7.
10 months) but desires a short, docketed confirmation from the applicant.44 Waterkeepers criticism of LMEs RCI response as conclusory is misplaced, misapprehends the factual record, misconstrues the regulatory process, and certainly does not demonstrate a genuine dispute on a material issue of law or fact.
V.
CONCLUSION The Motion demonstrates good cause in part; nevertheless, the Board should DENY the Motion because Amended Contention 4 is inadmissible on multiple overlapping grounds.
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 29th day of December 2025 44 NRC Office Instruction, LIC-115, Rev. 1, Processing Requests for Additional Information at 2 (Aug. 5, 2021)
(ML21141A238).
DB3/ 205219914.5 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 29, 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 12, 2025 MOTION TO AMEND CONTENTION 4 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