ML26005A251
| ML26005A251 | |
| Person / Time | |
|---|---|
| Site: | 05000614 |
| Issue date: | 01/05/2026 |
| From: | Perales M Perales, Allmon & Ice, P.C., San Antonio Bay Estuarine Waterkeeper |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 57570, 50-614-CP, ASLBP 25-991-01-CP-BD01 | |
| Download: ML26005A251 (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)
§
§
§
§
§
§ Docket No. 50-614-CP ASLBP No. 25-991-01-CP-BD01 January 5, 2026 SAN ANTONIO BAY ESTUARINE WATERKEEPERS REPLY IN SUPPORT OF MOTION TO AMEND CONTENTION 4 BASED ON ER SUPPLEMENT 2 Pursuant to 10 C.F.R. § 2.309(i)(2), San Antonio Bay Estuarine Waterkeeper (Waterkeeper or Petitioner) submits this Reply in Support of its Motion to Amend Contention 4 Based on ER Supplement 2.
I.
Introduction and Background By its Petition to Intervene, Waterkeeper included in its Contention 4 the following:
LMEs discussion regarding storage of spent nuclear fuel also fails to comply with applicable regulations.... LMEs Environmental Report, discussing continued at-reactor storage of spent nuclear fuel, references and relies on NUREG-2157 and 10 C.F.R. § 51.23 for purposes of demonstrating compliance with the required assessment of the impacts of continued storage beyond the licensed lifetime of the reactor. However, 10 C.F.R. § 51.23 and NUREG-2157 (General Environmental Impact Statement for Continue Storage of Spent Nuclear Fuel) apply only to light-water reactors, not non-light-water reactors, such as the one proposed here. Thus, LME was required to conduct an assessment of the impacts of continued storage of spent nuclear fuel beyond the licensed lifetime of the reactor.1 1 Waterkeepers Petition, pp. 49-50 (referencing 10 C.F.R. § 51.23 and NUREG-2157 (GEIS for Continued Storage of Spent Nuclear Fuel)).
2 In its Answer, NRC Staff agreed that Waterkeeper presented an admissible contention of omission, explaining:
[LME] relies on the Continued Storage GEIS and on 10 C.F.R. § 51.23 as currently written without providing analysis demonstrating that the Continued Storage GEIS applies. Applications not covered by the Continued Storage GEIS as codified in 10 C.F.R. § 51.23 are required to address the environmental impacts of the continued storge of spent nuclear fuel beyond the licensed life for operation of a reactor. An applicant not covered by the Continued Storage GEIS can rely on it, if the applicant demonstrates that the Continued Storage GEISs analysis bounds the proposed facility. LMEs justification for its reliance on the Continued Storage GEIS, however, is the conclusory statement that [w]aste and spent fuel inventories, as well as their associated certified spent fuel shipping and storage containers are not significantly different from what has been considered for LWR evaluations in [the Continued Storage GEIS]. As LME did not include any supporting analysis for that statement, by identifying the omitted information, Petitioner has raised a genuine dispute within the scope of the proceeding that is material to the findings the NRC Staff must make to reach a decision on the CP Application.2 Staff continued: If an applicant made such a demonstration [that the Continued Storage GEISs analysis bounds the proposed facility], however, issues covered by the Continued Storage GEIS would not be considered resolved via 10 C.F.R. § 51.23 for that applicant.3 In response to a request from Staff4 for confirmation of information, LME provided Supplement 2 to its ER on October 17, wherein LME represented: The fuel kernels used by the Xe-100 at LMGS will be comparable to those used by the HTGR at Fort St. Vrain.
Based on this statement, on December 3, Staff advised the parties and the Board that the information supplied by LME in its October 17 submittal explains how the Continued 2 NRC Staff Answer to Waterkeeper Petition, p.41.
3 Id., n.189.
4 Staffs October 8 request for information sought the following: Please confirm: The fuel kernels used by the Xe-100 at LME would be comparable to those used by the HGTR at Fort St. Vrain.
3 Storage GEIS bounds its fuel and its application. As such, in the Staffs view, LMEs supplemental submission appears to be sufficient to moot the portion of Contention 4 related to the environmental effects of continued storage of spent fuel generated by Long Mott Generating Station.
By its Motion to Amend Contention 4, Waterkeeper sought to maintain its initial contention languagenamely, that LME failed to conduct the required assessment of the impacts of continued storage of spent nuclear fuel beyond the licensed lifetime of the reactor. And it sought to amend this language by referencing ER Supplement 2, as follows:
ER Supplement 2 is inadequate to satisfy this requirement related to LMEs proposed continued storage of spent nuclear fuel beyond the licensed lifetime of the reactor and it does not justify LMEs reliance on the Continued Storage GEIS to satisfy this requirement.
NRC Staff and LME both opposed Waterkeepers Motion. Waterkeeper addresses their arguments below.
II.
Reply to NRC Staffs Answer Staff maintain that Waterkeepers amended contention is inadmissible because (1) the Motion and supporting declaration amount to mere speculation; (2) Waterkeeper fails to address a recent Commission decision involving similar facts; and (3) 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.5 5 NRC Staff Response to Waterkeepers Motion, p.7.
4 As an initial matter, Waterkeeper is not required to prove the merits of its proposed contention at this stage.6 Waterkeeper supported its proposed amended contention with Dr.
Lymans Declaration, which explains why a reference to the fuel kernels used by the HGTR at Fort St. Vrain is inadequate to demonstrate compliance with the required assessment of the impacts of continued storage of spent nuclear fuel beyond the licensed lifetime of the reactor; nor does it justify LMEs reliance on the Continued Storage GEIS to satisfy this requirement.7 Staffs cited cases do not support its argument. For instance, in USEC INC.
(American Centrifuge Plant), CLI-06-10, 63 NRC 451 (2006), the NRC concluded that the petitioners proffered contention was not adequately supported because the contention quotes brief statements by Mr. Sergei Pashenko, a Russian physicist, whose brief remarks are difficult to comprehend and appear largely conclusory. It is not apparent that even [petitioner] understands Mr. Pashenkos statements, which it presented without any attempt to interpret the language.8 Dr. Lymans Declaration, by contrast, provided a technical explanation, examples, and citations to references in support of his opinions.
Significantly, it is LME that has failed to provide any analysis explaining why a reference to the fuel kernels used by the HGTR at Fort St. Vrain is adequate here. There is no analysis comparing the fuel used at Fort St. Vrain to the proposed fuel to be used by 6 See PPL Susquehanna LLC (Susquehanna Steam Electric Station, Units 1 & 2), LBP-07-4, 65 NRC 281, 303-304 (2007) (explaining that the strict contention rule requires only a proffer [of] at least some minimal factual and legal foundation in support of their contentions).
7 See, e.g., Dr. Lyman Declaration, ¶¶ 16-20 (citing Gordon M. Petersen et al., Preliminary Analysis of Advanced Reactors Storage, Transportation, and Disposal, INL/CON-23-75963-Revision-0 (March 2024),
at 5 (Characteristics and Properties of TRISO SNF)).
8 63 NRC at 472.
5 LME; LME simply offers a conclusory statement confirming that the fuel is comparable.
The missing analysis that NRC Staff initially identified, in its Answer to Waterkeepers Petition to Intervene, remains missing in ER Supplement 2. Yet, Staff now claim that ER Supplement 2 has mooted Waterkeepers contention, because it provides a single statement, without explanation, that fuel kernels used by the HGTR at Fort St. Vrain are comparable to those that are proposed to be used at the LMGS. Staffs arguments attempt to impose a heightened pleading burden on Waterkeeper, while minimizing the requirements that LME must address.
Next, Staff maintains that Waterkeepers Motion does not grapple with Kairos Power, LLC (Hermes Test Reactor), CLI-23-5, 98 NRC 53 (2023). As an initial matter, neither LME nor Staff cited this decision in ER Supplement 2 or the request for clarification. Thus, it is unclear why Staff believes Waterkeeper bore the burden of grappling with this decision. Moreover, the NRC decision in Kairos Power includes no discussion comparing TRISO fuel to the Fort Saint Vrain coated fuel kernels. Finally, the Kairos Power case was not a contested case; it was an uncontested proceeding, and so, the Commission was not tasked with reviewing and resolving conflicting evidence. The Kairos Power decision is not helpful to the discussion of the amended contention presented by Waterkeeper.
As to Staffs statement 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 informationthis is at odds with Staffs Answer to Waterkeepers
6 Petition. Staff initially agreed, in its Answer, that LMEs ER failed to address the environmental impacts of the continued storge of spent nuclear fuel beyond the licensed life for operation of a reactor; Staff was correct in its assessment. ER Supplement 2 consists of a single sentence, and that sentence is also devoid of any analysis.
III.
Reply to LMEs Answer LME argues that Waterkeeper has failed to show good cause for its Motion to Amend Contention 4. It further argues that there is no requirement that compels LME to address the environmental impacts of the continued storge of spent nuclear fuel beyond the licensed life for operation of a reactor in its ER. LME further argues that the issue presented in Waterkeepers Motion is not litigable because it is the subject of a pending rulemaking.
And finally, LME argues that Waterkeepers proposed amended contention fails to identify a material dispute regarding the fuel kernels.9 A.
Waterkeeper has shown good cause.
LME argues that Waterkeeper has shown good cause only to challenge the statement in its ER Supplement 2 that the fuel kernels at LMGS are comparable to FSVs fuel kernels. But, LME maintains, to the extent Waterkeepers 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 postirradiation spent nuclear fuel, Waterkeepers Motion fails to demonstrate good cause, because ER Supplement 2 includes no information about these topics.10 9 LME Answer, p.4.
10 LME Answer, p.4.
7 To be clear, Waterkeepers original contention challenged LMEs reliance on the Continued Storage GEIS without providing an analysis demonstrating that the Continued Storage GEIS applies, as NRC Staff recognized.11 There was no comparison in the initial CPA-ER of (a) the TRISO fuel to be used by LMEs proposed LMGS, with (b) the fuel kernels used by the HTGR at Fort St. Vrain. Thus, a discussion of the differences between the two fuels, including the fuel elements, was not warranted until LME submitted its ER Supplement 2. Waterkeeper has shown good cause for its proposed amended contention.
B.
LME is legally required to address the environmental impacts of the continued storge of spent nuclear fuel.
LME argues that there is no requirement compelling it to address the environmental impacts of continued storage of spent fuel in its ER. LME acknowledges that NRC Staff disagree with this argument, but maintain that Staff do not have the authority to offer an interpretation of the applicable rules. For support, LME cites to cases involving interpretations of unambiguous statutory language.12 But the applicable requirements cited by NRC Staff regarding this issue are found in rules, not statutes. Nonetheless, a review of the applicable rules reveals that although they lack clarity and could indeed be considered ambiguous, they indeed support the legal theory offered by NRC Staff in their Answer to Waterkeepers Petition to Intervene,13 and Waterkeeper agrees with NRC Staffs discussion of those regulatory requirements in its Answer to Waterkeepers Petition.14 11 NRC Staff Answer to Waterkeepers Petition, p. 41.
12 LME Answer to Waterkeepers Motion, p.6, n. 27 & 28.
13 See Kisor v. Wilkie, 588 U.S. 558, 566-577 (2019).
14 See NRC Staff Answer to Waterkeepers Petition to Intervene, p.41, n.188 & 189. For brevity. Staffs analysis of the applicable requirements will not be repeated here.
8 Indeed, LME cited to the Continued Storage GEIS and on 10 C.F.R. § 51.23 in its initial CPA-ER.15 To the extent there is a valid legal disagreement regarding whether LME satisfied the applicable requirements, this legal issue is best addressed during a hearing on the merits.
The case cited by LME in support of its argumentHoltec, Intl (HI-STORE Consol. Interim Storage Facility), LBP-19-4, 89 NRC 353 (2019), affd CLI-20-4, 91 NRC 167 (2019)is not applicable here. In that case, there was no dispute that the Continued Storage GEIS applied to Holtecs license application. Where the Continued Storage GEIS applies, a petitioner may not challenge the Continued Storage Rule and the impact evaluations contained in the Continued Storage GEIS, absent a waiver.16 Here, Waterkeeper contends that the Continued Storage Rule and GEIS do not apply, and Staff agreed. Holtec is simply not relevant here and does not support LMEs argument.
C.
The pending rulemaking does not preclude admission of Waterkeepers proposed contention.
Next, LME argues that because 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, Waterkeepers amended contention should be rejected.
For support, LME cites Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, &
3), CLI-99-11, 49 NRC 328 (1999). In that case, petitioners claimed that an ER should have addressed the impacts of transporting high-level waste to a high-level waste 15 LME CPA-ER, p. 5.7-13.
16 89 NRC at 395.
9 repository site.17 This was an issue that was not governed by a current NRC rule, but was the subject of a pending rulemaking. The Commission had expressly provided that current license renewal applicants should not address these transportation issues unless waiting for the rulemaking to be final would delay the license renewal proceeding.18 This case does not apply here.
In the present matter, as Staff acknowledged, there is a current applicable requirement that compels LME to address the environmental impacts of the continued storge of spent nuclear fuel beyond the licensed life for operation of a reactor.19 That there is a pending rulemaking that might change this requirement does not preclude Waterkeepers contention.20 Moreover, in its ER, LME relies on the Continued Storage GEIS and on 10 C.F.R.
§ 51.23 as currently written, without providing an analysis demonstrating that the Continued Storage GEIS applies. LME does not even cite to the pending rulemaking in its ER or its Supplement 2.
LMEs argument is without merit.
17 49 NRC at 345.
18 Id.
19 See NRC Staff Answer to Waterkeepers Petition to Intervene, p.41, n.188 & 189.
20 See, e.g., In the Matter of Consumers Power Company (Midland Plant, Units 1 and 2), 16 NRC 2034, 2038 (1982): We construe the Douglas Point line of cases, therefore, as standing for no more than that, during a rulemaking on a particular subject, there shall be no different consideration of an issue (absent Commission direction to the contrary) than there would have been in the absence of the rulemaking. The Commission continued by distinguishing the Douglas Point line of cases thusly, the subject matter of the rulemaking was a matter which, in the absence of a modification of the rules (through the pending rulemaking or otherwise) could not have been considered through adjudication. Id. at 2037. Such is not the case here. Rather, LME argues that the Board should await the conclusion of the pending rulemaking so that LME can take advantage of the rule that it assumes will be finalized and adoptednot for the purpose of imposing a requirement that does not currently exist.
10 D.
Waterkeeper has raised a material dispute.
LME argues that Waterkeepers Amended Contention 4 is 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.21 This argument is similar to one offered by NRC Staff.22 Accordingly, Waterkeeper incorporates by reference the reply offered, above, to NRC Staffs arguments, wherein Waterkeeper points to specific portions of Dr. Lymans Declaration explaining why the differences between the fuel kernels are significant, and why Waterkeeper has satisfied its burden in presenting a factually and legally supported contention.
IV.
Conclusion For the foregoing reasons and those described in its Motion, Waterkeepers Motion to Amend Contention 4 Based on ER Supplement 2 should be granted.
Date: January 5, 2026 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 21 LME Answer, p.9.
22 NRC Staff Answer, pp. 4-5.
11 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 ASLBP No. 25-991-01-CP-BD01 January 5, 2026 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I hereby certify that, on January 5, 2026, copies of the foregoing San Antonio Bay Estuarine Waterkeepers Reply in Support of Motion to Amend Contention 4 Based on ER Supplement 2 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