ML25363A194
| ML25363A194 | |
| Person / Time | |
|---|---|
| Site: | 05000614 |
| Issue date: | 12/29/2025 |
| From: | Perales M Perales, Allmon & Ice, P.C., San Antonio Bay Estuarine Waterkeeper |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 57568, ASLBP 25-991-01-CP-BD01, 50-614-CP | |
| Download: ML25363A194 (0) | |
Text
1 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)
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§ Docket No. 50-614-CP ASLBP No. 25-991-01-CP-BD01 December 29, 2025 SAN ANTONIO BAY ESTUARINE WATERKEEPERS REPLY IN SUPPORT OF ITS MOTION TO AMEND CONTENTION 1 Pursuant to 10 C.F.R. § 2.309(i)(2), San Antonio Bay Estuarine Waterkeeper (Waterkeeper) submits this Reply in Support of its Motion to Amend Contention 1.
I.
Reply to NRC Staffs Answer Staff raise three arguments in support of their position that Waterkeepers Motion to Amend Contention 1 should be denied: Waterkeepers request to amend its Contention 1 (1) is untimely; (2) lacks specificity and is conclusory; and (3) is not material to this CPA proceeding. Waterkeeper addresses each in turn below.
A.
Waterkeepers Motion to amend is timely.
Staff argue that Waterkeeper agreed with Staffs characterization of its contention related to Rule 50.34(a)(8)1 as a contention of omission, and that Waterkeepers Motion attempts to impermissibly recharacterize its contention of omission as one of inadequacy.
Based on this argument, Staff maintain that Waterkeepers Motion is untimely.
Waterkeeper indeed agreed with portions of Staffs Answer to its Petitionnamely, that the omission of critical information from the LM-CPA calls into question the 1 Citations to Rules refer to Title 10 of the C.F.R., unless otherwise indicated.
2 applicants compliance with 10 C.F.R. § 50.34(a)(8), including the omission of a detailed description of the fuel testing program and a plan 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.2 But Waterkeepers critique was not limited to the absence of a schedule for the testing to be completed, as Staff now imply.
In his Declaration in support of Waterkeepers Petition, Dr. Lyman explained that an approved evaluation model and experimental information necessary for determining fuel performance capabilities and developing accurate mechanistic source terms [MST],
which are essential for evaluating the performance of the functional containment, are not available at the present time and will not be available until commercial-scale fuel produced under prototypical conditions has been fully tested over a sufficiently broad spectrum of off-normal conditions.3 And so, the LM-CPA simply does not demonstrate that the proposed Xe-100 functional containment will provide adequate protection of public health and safety and does not comply with the requirements of 10 C.F.R. § 50.34(a)(4). This is because the adequacy of the functional containment, which is dependent on the adequacy of the MST determination, has not been demonstrated.4 Dr. Lyman further explained that although X-Energy described its planned testing program during an ACRS committee 2 Waterkeeper Reply, pp. 13-14, 16.
3 Lyman Declaration, ¶ 9.
4 Lyman Declaration, ¶ 38.
3 meeting, the description did not change his opinion that the type of testing required to satisfy Rule 50.34(a)(8) could not be reasonably achieved before 2033.5 The Staff themselves characterized the scope of Dr. Lymans critique in their summary of the basis of Waterkeepers Contention 1:
Waterkeeper challenges LMEs use of its [MST] methodology to demonstrate the adequacy of its use of functional containment to limit the release of radionuclides from its proposed high-temperature gas-cooled reactor to the environment by arguing, in part, that testing data and other information required to be included in the LME CP Application is missing. Waterkeeper specifically argues that LME fails to meet NRC requirements for use of functional containment and [MST] in 10 C.F.R. § 50.34(a)(8) because LMEs Application lacks existing representational fuel data to demonstrate the adequacy of the design. Waterkeeper relies on the expert testimony of Dr. Edward [sic] Lyman, who cites and references specific portions of the Application and other documents that LME relies on to identify specific omissions and assert that the LMEs [MST] methodology insufficiently analyzes the safety of LMEs functional containment.
Waterkeepers seven additional asserted deficiencies all relate to claims of insufficient and inadequate data, or data that is not yet available due to testing that has not been done or has an uncertain end date. Specifically, Dr. Lyman states that specific assumptions LME uses about fuel performance, a key part of LMEs functional containment, have not been validated....
Dr. Lyman opines that manufacturing defect data gathered by sampling industrial-scale, representative fuel is needed to justify the assumptions that LME makes about particle defect rates and notes that such data will not be available until several years after the TRISO-X plant proposed for Oak Ridge, TNthat will ultimately manufacture the fuel for the LME facilitybegins operation. [Dr.
Lyman] also states that LMEs reliance on the Advanced Gas Reactor (AGR) program testing is inadequate and provides insufficient support for its approach to functional containment because that test program only looked at compacts rather than the pebble fuel forms that the Xe-100 will use, and thus is not sufficiently representative of the fuel that LME plans to use.6 While Staff characterized this contention as one of omission of information required for an application that utilizes [MST] methodology and functional containment, 5 Lyman Declaration, ¶¶ 36, 37.
6 NRC Staff Answer to Waterkeepers Petition, pp. 12-15.
4 Waterkeeper maintained that this contention was not only a contention of omission, but rather, one of inadequacy. The deficiencies identified by Waterkeeper and summarized by NRC Staff remain valid, even with the submission of Supplement 1. Waterkeepers Motion to Amend is the appropriate mechanism by which to explain that Supplement 1 does not resolve the critiques and deficiencies identified in Waterkeepers Petition and in Dr.
Lymans Declaration.
The McGuire case cited by Staff supports Waterkeepers Motion here. There, the NRC acknowledged that amended or new contentions are appropriate when the applicant has supplied new information attempting to address a contention of omission.7 Such is the case here. Waterkeepers Motion explains why Supplement 1 does not cure the deficiencies identified in Waterkeepers Petition.
B.
Waterkeepers contention is adequately supported.
Next, Staff claim that Waterkeepers statements are not adequately supported and amount to generalized suspicions. But Staff misreads Waterkeepers Motion and misses the point of the relevant regulations. A simple schedule and general description of the fuel qualification testing, lacking detail, is not what the rules contemplate.8 As Waterkeeper explained in its Petition, Reply, and Motion to Amend, LMEs functional containment is a structure, system, or component (SSC) that requires a research and development program 7 Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2), CLI-02-28, 56 NRC 373, 382-83 (2002).
8 See, e.g., 10 C.F.R. § 50.34(a)(8) ([I]dentification and description of the research and development program which will be conducted to resolve any safety questions associated with such structures, systems or components; and a schedule of the research and development program showing that such safety questions will be resolved at or before the latest date stated in the application for completion of construction of the facility.).
5 that satisfies the requirements of 50.35(a), meaning the testing program must be reasonably designed to resolve safety questions associated with the functional containment (which depends, fundamentally, on the fuel performance) and must provide reasonable assurance that such safety questions will be satisfactorily resolved by the date for completion of construction of the facility. Dr. Lyman has explained why details, such as peak fuel burnups to be achieved and peak fuel temperatures to be tested under accident conditions, are significant inputs into the MST model and must be included in the testing program.9 Waterkeeper also explained why LMEs proposed timeline cannot plausibly yield results sufficient to satisfy the requirements of 50.34(a)(8) and 50.35(a). In his Declaration, Dr. Lyman quoted the ACRS letter on the X-Energy MST LR, which provides:
The source term from TRISO fuel in a high temperature gas-cooled reactor is a strong function of the initial level of manufacturing defects (heavy metal contamination, SiC defects), the in-service failures under irradiation, and the incremental failures during postulated accidents. Because of the importance to the overall functional containment strategy, the initial fuel failure fractions used in the X-energy safety analysis approach must bound actual manufacturing data.10 However, as explained by Dr. Lyman, validation of the as-manufactured defect rate assumptions is currently impossible. This is because the facility where the TRISO pebbles for the LM project will be fabricated does not yet exist. Further, Dr. Lyman explained that such data is crucial because of evidence that the X-Energy MST model assumes particle defect rates significantly lower than what was ever achieved in fuel production campaigns in both Germany and the United States.11 Thus, to satisfy the criteria in 50.34(a)(8) and 9 See Lyman Declaration, ¶¶ 19-23.
10 Lyman Declaration, ¶16.
11 Lyman Declaration, ¶18.
6 50.35(a), requiring a research and development program that is reasonably designed to resolve any safety questions associated with the fuel, LME must justify its use of such low failure rates by demonstrating that these assumptions are consistent with manufacturing scale fuel data. This it cannot do, and Supplement 1 does not remedy this defect.
C.
Waterkeeper has presented a material issue of law and fact.
Staff next argue that the issue presented by Waterkeepers Motion is not material to this construction permit application proceeding. Staff also claim that Waterkeeper does not engage with LMEs representation that its fuel testing campaign is intended to demonstrate that the AGR program fuel performance data is applicable to TRISO-coated UCO particles in fuel pebbles.
In short, the issues raised by Waterkeeper must be addressed in this proceeding because 50.35(a) requires it.12 LME bears the burden of satisfying the criteria in 50.34 and 50.35, yet it has failed to explain why its proposed fuel testing is adequate to satisfy these requirements. In fact, LME disputes that these regulations apply to its fuel testing program.
Further, Staff mischaracterize the reference to pebble fuel in Waterkeepers Motion.
Waterkeeper cited the fact that pebble-based UCO TRISO fuel has never been tested to dispute LMEs assertion that its testing program is merely confirmatory in nature and therefore would not constitute research and development. LMEs proposed testing program, in comparison to the results of the AGR program, may yield useful data on the 12 [T]he Commission may issue a construction permit if the Commission finds that... the applicant has identified, and there will be conducted, a research and development program reasonably designed to resolve any safety questions associated with such features or components and that there is reasonable assurance that, (i) such safety questions will be satisfactorily resolved at or before the latest date stated in the application for completion of construction of the proposed facility. 10 C.F.R. § 50.35(a).
7 impacts of the different fuel form on the MST. However, LME has not explained why such data would have any bearing on resolution of any safety questions. On the contrary, LMEs CPA-PSAR references the X-Energy TRISO-X Pebble Fuel Qualification Methodology Topical Report, which concedes that data from the AGR-5/6/7 test series a key part of the AGR programs demonstration of TRISO fuel performancewould not be included in support of the X-Energy TRISO fuel qualification process because the AGR 5/6/7 fuel compacts did not meet manufacturing specifications and are not representative of Xe-100 fuel.13 Supplement 1 does not engage with this statement.
II.
Reply to LMEs Answer Contrary to LMEs argument, there is ample information in Waterkeepers Petition, Staffs Answer, Waterkeepers Reply, and Dr. Lymans Declaration to deduce that fuel qualification testing in the context of the LME CPA is research and development required by 50.34(a)(8) and 50.35(a).14 LME argues that Waterkeepers Motion should nevertheless be denied because it has not shown good cause. LME also claims that the Motion does not directly engage with the specific testing program proposed in Supplement 1. Finally, LME argues that Waterkeeper has not explained why the fuel testing program must include as-manufactured fuel from a commercial scale facility, and that Waterkeeper disregards or fails to engage with LMEs representations that the test fuel is sufficiently representative.
A.
Good Cause 13 X-Energy Fuel Qualification Topical Report, Revision 3, App. D, p.11 (ML22216A179).
14 See, e.g., Waterkeepers Motion to Amend Contention 1, p. 7, n. 18.
8 Waterkeeper contends that the description of the testing program proposed in Supplement 1 does not provide sufficient detail and an overall sufficiency justification to address the requirements of 50.34(a)(8) and 50.35(a); this information was also missing from the initial PSAR. That LME has proposed to complete its experimental testing before 2033 does not resolve the deficiencies noted by Waterkeeper. Yet, even though Staff has not finished its substantive review, Staff determined that Supplement 1 mooted Waterkeepers contention. Waterkeeper has demonstrated good cause for its Motion, as it explains why Supplement 1 did not cure the deficiencies noted in its original contention.
B.
Waterkeepers identification of deficiencies in LMEs fuel testing program is supported by Dr. Lymans Declaration.
LME maintains that Waterkeepers argument that necessary fuel testing cannot be accomplished and cannot yield useful results by 2033 is unsupported and that Dr. Lymans statements in support of this argument are mere speculation. To the contrary, it is LME that speculates by asserting that the results of the multi-year test program will validate every assumption in the CPA regarding performance of its novel fuel and thus, that the NRC can rely on these assumptions to approve construction of a design without a physical containment.
As explained above, to satisfy 50.34(a)(8) and 50.35, additional details regarding the testing program are necessarythat is, assumptions made in the LM-CPA about the performance of its fuel in support of the development of MSTs must be validated.15 Supplement 1 proposes to demonstrate that AGR program fuel performance data is 15 Lyman Declaration, ¶¶ 19, 20.
9 applicable to TRISO coated UCO particles in fuel pebbles.16 Dr. Lyman has already explained why relying on AGR data is inadequate here.17 LME does not explain why AGR test data is appropriate here; in fact, LME has stated the contrary. LMEs statement that Waterkeepers critique is unsupported is simply incorrect.
Similarly, the proposed schedule in Supplement 1 does not address the deficiencies noted by Waterkeeper. Nowhere does Supplement 1 explain why its proposal is sufficiently representative to address safety-related concerns, as identified in the ACRS letter.
LME also claims that the cited regulations do not require details such as peak fuel burnups to be achieved and peak fuel temperatures to be tested under accident conditions.
As explained above, this information is necessary to address the safety concerns.18 For example, PSAR Supplement 1 references the Xe-100 Topical Report.19 The report states that relatively high SiC degradation rates can occur if temperatures are higher than
~1800°C for extended periods of time (~100 hours or longer), and thermal decomposition of SiC occurs rapidly at temperatures above 2000°C. The maximum expected fuel temperatures in the Xe-100 during depressurized core heatup accidents are well below 2000°C as will be demonstrated through safety analyses in future licensing applications.20 This last sentence is at odds with the LM-CPA PSAR, which, as Waterkeeper explained in 16 PSAR Supp. 1 at 6.4-21.
17 For example, AGR program test data for UCO fuel is only available for compacts rather than the pebble fuel forms that the Xe-100 will use. This has been noted as a significant limitation in the use of AGR data for assessing the effectiveness of the Xe-100 fuel matrix as a component of the functional containment.
Lyman Declaration, ¶32 (citing Staffs Safety Evaluation of the X-Energy Xe-100 Topical Report).
18 Lyman Declaration, ¶¶ 19-23.
19 TRISO-X Pebble Fuel Qualification Methodology, Revision 3 (ML23160A294).
20 Id. at 66.
10 its Petition, finds that the peak fuel temperature in a certain analyzed licensing basis event approaches 2000°C, and remains at or above 1800°C for a minimum of nearly 70 hours8.101852e-4 days <br />0.0194 hours <br />1.157407e-4 weeks <br />2.6635e-5 months <br />.
This is the PSARs only reference for its fuel qualification methodology, which raises questions about whether the proposed test program will indeed qualify the fuel for the totality of the operational regime, as the NRC Staff specified in their second limitation on use of the Xe-100 TRISO-X Pebble Fuel Qualification Methodology Topical Report.21 In response to Waterkeepers argument that the testing program must test as-manufactured fuel, LME argues that its 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). But, nowhere does Supplement 1 explain how LME can demonstrate that the test fuel fabricated at the pilot facility is sufficiently representative of to-be-manufactured fuel in a yet-to-be-constructed fuel fabrication plant to ensure that the proposed testing will validate its fuel assumptions and address the vulnerabilities described in Dr. Lymans Declaration.
Finally, LME promises that fuel that does not conform to its specifications will not be loaded into the facility. But, the inquiry is whether LMEs proposed testing of the fuel is reasonably designed to resolve all safety questions associated with LMEs functional containment. Supplement 1 does not propose to test samples representative of as-manufactured fuel, but instead speculates that its non-existent fuel fabrication plant will be able to manufacture fuel on an industrial scale that conforms to the specifications of the 21 Lyman Declaration, ¶ 35.2.
11 samples. Thus, it cannot validate specific assumptions LME uses about fuel performance, which is a key part of LMEs functional containment. Indeed, LME does not even acknowledge that such testing is required by 50.34 and 50.35.
III.
Conclusion For the foregoing reasons and those described in its Motion, Waterkeepers Motion to Amend Contention 1 should be granted.
Date: December 29, 2025 Respectfully submitted, Signed (electronically) by Marisa Perales Marisa Perales Texas Bar No. 24002750 marisa@txenvirolaw.com PERALES, ALLMON & ICE, P.C.
1206 San Antonio St.
Austin, Texas 78701 512-469-6000 (t) l 512-482-9346 (f)
Counsel for San Antonio Bay Estuarine Waterkeeper
12 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)
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§ Docket No. 50-614-CP ASLBP No. 25-991-01-CP-BD01 December 29, 2025 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I hereby certify that, on December 29, 2025, copies of the foregoing San Antonio Bay Estuarine Waterkeepers Reply in Support of Its Motion to Amend Contention 1 were served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned docket.
Signed (electronically) by Marisa Perales Marisa Perales Texas Bar No. 24002750 marisa@txenvirolaw.com PERALES, ALLMON & ICE, P.C.
1206 San Antonio St.
Austin, Texas 78701 512-469-6000 (t) l 512-482-9346 (f)
Counsel for San Antonio Bay Estuarine Waterkeeper