ML25363A180

NRC Staffs Answer to San Antonio Bay Estuarine Waterkeepers Amended Contention 4

ML25363A180
Person / Time
Site:	05000614
Issue date:	12/29/2025
From:	Roth D, Stephens S NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
25-991-01-CP-BD01, RAS 57567, Long Mott Energy 50-614-CP
Download: ML25363A180 (0)

Text

December 29, 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 4 INTRODUCTION Pursuant to 10 C.F.R. § 2.309(i)(1) and the Atomic Safety and Licensing Boards December 17, 2025 Order,1 the staff (Staff) of the U.S. Nuclear Regulatory Commission (NRC) herein responds to the Motion to Amend Contention 4 (Motion) filed by San Antonio Bay Estuarine Waterkeeper (Waterkeeper) on December 12, 2025.2 In its Motion, Waterkeeper seeks to amend Contention 4, proffered originally on August 11, 2025,3 based on information submitted by Long Mott Energy, LLC (LME or Applicant) on October 17, 2025.4 For the reasons below the Motion should be denied because in seeking to amend its contention, Waterkeeper relies on unsupported speculation, fails to identify an error or omission in the application, and 1 Memorandum and Order (Establishing Schedule for Answers to Motion to Amend Contention 4)

(Dec. 17, 2025) (ADAMS Accession No. ML253351A186).

2 San Antonio Bay Estuarine Waterkeepers Motion to Amend Contention 4 Based on [environmental report (ER)] Supplement 2 (Dec. 12, 2025) with enclosed Declaration of Edwin Lyman, Ph.D. in Support of Motion to Amend Contention 4 Based on ER Supplement 2 (ML25346A278) (Declaration of Edwin Lyman, Ph.D.).

3 San Antonio Bay Estuarine Waterkeepers Petition to Intervene and Request for Adjudicatory Hearing (Aug. 11, 2025) (ML25223A335) (Petition).

4 Letter from Charles OConner, Long Mott Energy to Document Control Desk, NRC (Oct. 17, 2025)

(ML25290A123) (providing confirmatory information regarding the LME application).

demands that the Applicant do more than the Commission found acceptable in an analogous situation.

BACKGROUND Waterkeeper seeks to amend Contention 4 based on a comparison of fuel kernels and this exchange between the NRC Staff and the Applicant:

NRC Staff: Please confirm: The fuel kernels used by the Xe-100 at LME would be comparable to those used by the [high-temperature gas reactor] HGTR at Fort St.

Vrain.5 Applicant: The fuel kernels used by the Xe-100 at LMGS will be comparable to those used by the HTGR at Fort St. Vrain.6 Considering this exchange, Waterkeeper states two concerns that it believes warrant an amendment to Contention 4: the Applicant fails to explain: (1) the basis for its statement that the fuel kernels are comparable, and (2) how the statement that the fuel kernels are comparable excuses the Applicant from compliance with the requirement that it assess the environmental impacts of the continued storage of spent nuclear fuel beyond the licensed life for operation of a reactor.7 As relevant here, the fuel that LME would use in its pebble-bed reactor if, in the future, the NRC approves a license to operate it, is made of a fuel kernel surrounded by three structural coating layers.8 The Applicants ER says, in part, that [t]he defining characteristic of the pebble-bed reactor and key to safety of the Xe-100 is the use of [TRi-Structural ISOtropic] TRISO 5 Email from Joe Ohara, NRC to Mark Feltner, LME; Milton Gorden, X-Energy; et al., at 17 of 18 (unnumbered) (Sept. 26, 2025) (ML25269A047).

6 Letter from Charles OConner, at 4 of 6 (unnumbered).

7 Motion at 4.

8 Construction Permit Application Part II Preliminary Safety Analysis Report, section 6.4.2.1, Fuel Functions and Design Criteria, at 6.4-19. (ML25090A061) (PSAR).

coatings on [uranium oxycarbide] UCO kernels embedded in spherical fuel elements, also known as pebbles.9 The LME construction permit application provides a comparison with other facilities, including Fort Saint Vrain, in Section 1.1.3.1, Comparison with Similar Facilities, noting in part a wide range of coated particle experiments that have been associated with different kernels, different coatings, and ranges of enrichments, burn-up, and quality levels.10 DISCUSSION I.

Standing The NRC Staff incorporates here its discussion of standing in its September 5, 2025, Answer, in which the NRC Staff states its position that Waterkeeper has demonstrated representational standing in this matter.11 II.

Contention Admissibility The NRC Staffs September 5, 2025, Answer discusses the Commissions requirements for proffering an admissible contention.12 Portions of that discussion are particularly relevant 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.13 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.14 9 Construction Permit Application Part III Environmental Report, section 3.2.1, Xe-100 Reactor Design, at 3.2-2 (ML25090A063) (ER).

10 PSAR at 1.1-3-1.1-4.

11 NRC Staffs Answer to San Antonio Bay Estuarine Waterkeeper Petition to Intervene and Request for Hearing, at 4-7 (Sep. 5, 2025) (ML25249A000).

12 See id. at 8-11.

13 See, e.g., Entergy Nuclear Operations, Inc. (Indian Point, Unit 2), CLI-16-5, 83 NRC 131, 136 (2016).

14 System Energy Resources, Inc. (Early Site Permit for Grand Gulf ESP Site), LBP-04-19, 50 NRC 277, 289 (2004); see also, 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 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 Amended Contention 4 is inadmissible.

At bottom, the declarant simply states that the fuel design and anticipated usage by LMEs proposed reactor is different from what was used at Fort Saint Vrain, then speculates that the environmental impact might be different. Pursuant to 10 C.F.R. § 2.309(f)(1)(v), a petition must 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 requestor/petitioner intends to rely to support its position on the issue. Waterkeepers declarant states that the stored spent fuel could reasonably be expected to have significantly different characteristics [than Fort Saint Vrain] that would have a significant impact on its performance in long-term storage and different fuel design and burnup affect spent nuclear fuel characteristics.15 The petition and declaration lack any analysis, calculation, or discussion of what the speculative significant impacts would be in terms of the environmental impact of differences in fuel design and anticipated usage. The declarants speculative statements that there are differences in one fuel design and usage when compared to another fuel design and usage could be environmentally significant, without more, are insufficient to support admission of a contention, even when the declarant is an expert.16 The declarant does not explain how, as 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.).

15 Declaration of Edwin Lyman, Ph.D. at 4.

16 See USEC INC. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, (April 3, 2006) at 472 (an expert opinion that merely states a conclusion (e.g., the application is deficient, inadequate, or wrong) without providing a reasoned basis or explanation for that conclusion is inadequate because it deprives the Board of the ability to make the necessary, reflective assessment of the opinion.

(quoting Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-98-7, 47 NRC 142, 181)); see also Progress Energy Florida., Inc. (Levy County Nuclear Power Plant, Units 1 and 2),

CLI-10-2, 71 NRC 27, 40 (2010) (noting that petitioners, in contrast to the petitioner in American Centrifuge, offered sufficient expert support in the form of a declaration from their expert that explained the reasons for the expert's conclusions and cited or attached supporting documents).

Waterkeeper asserts, the result would be a seriously different picture of the environmental impact than that described in the ER if the LME fuel kernels and the Fort Saint Vrain fuel kernels are proven to be incomparable.17 Bare assertions and speculation, even by an expert, are insufficient to trigger a full adjudicatory proceeding.18 Thus, while Waterkeeper provides an expert opinion, the experts conclusions are based on unsupported assertions and speculation, and the NRC Staff finds that Waterkeeper fails to meet 10 C.F.R. § 2.309(f)(1)(v).

Waterkeeper asserts that LMEs response to the NRC Staffs request for confirmatory information lacks an explanation, but Waterkeeper does not point to anything that requires more and does not address relevant persuasive caselaw.19 Pursuant to 10 C.F.R. § 2.309(f)(1)(vi), a petition must provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact, and 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 reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioners belief. Specifically, Waterkeeper does not attempt to distinguish the similar facts of a recent Commission decision in which the Commission found no fault with a different construction permit applicants comparison 17 See Virginia Elec. & Power Co. (N. Anna Power Station, Units 1 & 2), LBP-24-7, 100 NRC 52 at 72 n.118 (Hydro Resources, Inc. (P.O. Box 777, Crownpoint, NM 87313), CLI-06-29, 64 NRC 417, 419 (2006) (But as the Commission explained earlier in this proceeding, not all new information that might emerge following issuance of an environmental impact statement requires a supplement to the impacts analysis. The new information must present a seriously different picture of the environmental impact of the proposed project from what was previously envisioned.); see USEC Inc. (American Centrifuge Plant),

CLI-06-10, 63 NRC 451, 480 (2006) (indicating contentions must be based on a genuine material dispute, not the possibility that petitioners, if they perform their own analyses, may ultimately disagree with the application.).) (internal quotations omitted).

18 See Pilgrim, CLI-12-15, 75 NRC at 714.

19 Motion at 6.

of Fort Saint Vrain fuel kernels with the TRISO fuel that other applicant proposed for use in its reactor to meet NRC requirements in its final environmental impact statement.20 In CLI-23-05, the Commission documented its independent review of the NRC Staffs environmental analysis provided in NUREG-2263, Environmental Impact Statement for the Construction Permit for the Kairos Hermes Test Reactor.21 Within NUREG-2263, when discussing the potential environmental impacts of continued storage of TRISO fuel, the NRC Staff compared Kairos Hermes fuel kernels to Fort Saint Vrains fuel kernels, discussing, in part, how the Kairos Hermes fuel begins in a similar manner[] with a UCO TRISO fuel kernel and how Kairos TRISO fuel is similar to the Fort Saint Vrain coated fuel kernels.22 In approving the issuance of the construction permit, the Commission accepted the NRC Staffs comparison of fuel kernels in the Kairos Hermes construction permit application final environmental impact statement, which were reasonably supported and sufficient to support the NRC Staffs conclusions.23 Waterkeeper does not address the Commissions holding in CLI-23-05, or otherwise explain the basis for its assertion that LMEs ER, together with its response to the NRC Staffs request for confirmatory information regarding a comparison of LMEs fuel kernels with those present in fuel from Fort Saint Vrain, is somehow deficient. Although Waterkeepers declarant asserts that the fuel from the two facilities is significantly different, rendering them incomparable, the declarant provides nothing more in support of its position, nor does Waterkeeper grapple with the Commissions decision in CLI-23-05, where a similar comparison was acceptable.24 20 See NUREG-2263, Environmental Impact Statement for the Construction Permit for the Kairos Hermes Test Reactor (August 2023) (ML23214A269) (Kairos CPA FEIS).

21 Kairos Power, LLC (Hermes Test Reactor), CLI-23-5, 98 NRC 53 (2023).

22 Kairos CPA FEIS at 3-72.

23 See Kairos Power, CLI-23-5, 98 NRC at 91.

24 Motion at 7.

Last, Waterkeeper engages in hyperbole where it asserts that LME fails to explain how this statement excuses LME from compliance with the requirement that it assess the environmental impacts of the continued storage of spent nuclear fuel beyond the licensed life for operation of a reactor.25 The NRC Staff sees no such assertion by LME in its ER or its response to the NRC Staffs request for confirmatory information.26 While the NRC Staffs environmental review is ongoing and the NRC Staff has not reached conclusions yet as to the adequacy of the LME construction permit application, the NRC Staff notes that the ER and associated response for confirmatory information include discussions of the potential environmental impacts of the continued storage of spent nuclear fuel beyond the licensed life for operation of a reactor and incorporate additional information.

The Motion does not provide any amended text to be used as an amended Contention 4, but rather states, in part: Waterkeepers proposed amended contention remains mostly the same as its initial Contention 4.27 In Contention 4, as originally submitted, Waterkeeper argued that the environmental report minimizes the adverse environmental impacts of the proposed facility.28 Waterkeeper further argued that the contention seeks compliance by the NRCs environmental review with [National Environmental Policy Act (NEPA)] and the NRCs implementing regulations.29 Pursuant to 10 C.F.R. § 2.309(f)(1)(i) and (ii), a petition must provide a specific statement of the issue of law or fact to be raised or controverted and a brief explanation of the basis for the contention. And, pursuant to 10 C.F.R. § 2.309(f)(1)(iii) and (iv),

a petition must demonstrate that the issue raised in the contention is within the scope of the proceeding and material to the findings the NRC must make to support the action that is 25 Id. at 4.

26 See, e.g., ER at 5.7 - 5.8 and documents incorporated therein.

27 Motion at 5.

28 Petition at 44.

29 Id. at 51.

involved in the proceeding. While Waterkeeper seeks, through its Motion, to add additional supporting bases to original Contention 4, and arguably meets the contention admissibility requirements in 10 C.F.R. § 2.309(f)(1)(i), (ii), (iii), and (iv), Waterkeepers amended Contention 4 is inadmissible because it does not meet § 2.309(f)(1)(v) and (vi).

CONCLUSION In sum, Waterkeepers Motion to amend Contention 4 should be denied because the Motion is supported only by insufficient speculation and does not show an error in or omission of information required in a construction permit application environmental document.

Respectfully submitted,

/Signed (electronically) by/

David E. Roth Counsel for NRC Staff Mail Stop: O15-B04 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9121 E-mail: david.roth@nrc.gov Executed in Accord with 10 CFR 2.304(d)

Samuel K. Stephens Counsel for NRC Staff Mail Stop: O-15-B04 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 415-1581 E-mail: samuel.stephens@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 4, has been filed through the NRCs E-Filing System this 29th day of December 2025.

/Signed (electronically) by/

David E. Roth Counsel for NRC Staff Mail Stop: O15-B04 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9121 E-mail: David.Roth@nrc.gov