ML26014A277
| ML26014A277 | |
| Person / Time | |
|---|---|
| Site: | 05000614 |
| Issue date: | 01/14/2026 |
| From: | Lighty R, Polonsky A Long Mott Energy, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 57575, ASLBP 25-991-01-CP-BD01, 50-614-CP | |
| Download: ML26014A277 (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 January 14, 2026 LONG MOTT ENERGY, LLCS ANSWER TO WATERKEEPERS DECEMBER 31, 2025 MOTION FOR NEW AND AMENDED CONTENTIONS 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 31, 2025 Motion (Motion).2 For the reasons set forth below, the Board should DENY the Motion.
In its original Contention 4, Waterkeeper argued that LMEs construction permit application (CPA) provided a deficient environmental analysis.3 LMEs environmental analysis was presented in the CPAs environmental report (ER), whereas the bulk of Contention 4 criticized a different part of the CPA: the preliminary safety analysis report (PSAR). For example, it complained that the PSAR failed to present a stand-alone climate change analysis. As explained in LMEs Answer, that claim is inadmissible because such analyses are not required by NRC regulations; and, because Waterkeeper acknowledged this fact, its claim improperly challenged NRC regulations.4 The NRC Staff agreed.5 1 Memorandum and Order (Initial Prehearing Order) (Aug. 28, 2028) (ML25240B507).
2 San Antonio Bay Estuarine Waterkeepers [(Waterkeeper)] Motion to Add a New Contention and Amend Contention 4 Based on Long Motts Supplements to the PSAR (Dec. 31, 2005) (ML25365B107) (Motion)
(including a declaration from Mr. Mitman as Encl. A).
3 [Waterkeeper]s Petition to Intervene and Request for Hearing at 44-52 (Aug. 11, 2025) (ML25223A335)
(Petition).
4 [LME]s Answer to [Petition] at 79-82 (Sept. 5, 2025) (ML25248A335) (LME Ans. to Pet.).
5 NRC Staffs Answer to [Petition] at 32-33 (Sept. 5, 2025) (ML25249A000) (NRC Staff Ans. to Pet.).
2 LMEs Answer also explained that Waterkeepers criticisms of PSAR flooding analyses were inadmissible.6 However, the NRC Staff argued that Waterkeepers criticism of a PSAR footnotestating that more detailed flooding analyses would be provided by the end of 2025 was admissible as a contention of omission.7 As promised, LME subsequently submitted more refined flooding analyses to the NRC (PSAR Supplements).8 The NRC Staff then notified the Board that the submittal appeared to contain the allegedly omitted information and moot Waterkeepers corresponding claim.9 In its Motion, Waterkeeper requests leave to file a new contention (Contention 6), challenging the updated flooding analyses, and an amended Contention 4, extending one particular claim.
I.
THE MOTION SHOULD BE DENIED AS TO AMENDED CONTENTION 4 The Motion seeks a limited amendment of Contention 4,10 which is solely an environmental contention.11 Specifically, original Contention 4 complained that the PSAR failed to consider the effects of climate change in its analysis.12 Having demonstrated good cause under § 2.309(c)(1), Waterkeeper now extends that specific claim to cover the PSAR 6 LME Ans. to Pet. at 77-79, 82-89.
7 NRC Staff Ans. to Pet. at 36-37. But see id. at 32-33 (appearing to present a conflicting conclusion that Waterkeeper failed to explain how its PSAR critiques support an environmental contention); Original PSAR at 2.4-47 to -277 (Mar. 31, 2025) (ML25090A061) (presenting, and not omitting, flooding analyses that used conservative assumptions to compensate for the unavailability of site-specific information at that time); Petition at 47-48 (failing to explain any reason why the use of conservative assumptions fails to comply with NEPA or Part 51 or why any particular assumption (in the not-omitted analyses) was somehow inadequate).
8 LME, Supp. # 2 to the PSAR for the LMGS CPA (Nov. 20, 2025) (ML25324A306) (Supp. 2);
LME, Supp. # 3 to the PSAR for the LMGS CPA (Dec. 4, 2025) (ML25338A310) (Supp. 3);
LME, Supp. # 4 to the PSAR for the LMGS CPA (Dec. 12, 2025) (ML25346A256).
9 Staff Notification Regarding Supplemental Information at [PDF p. 4] (Dec. 3, 2025) (ML25337A133).
10 The Motion does not propose to extend Waterkeepers other flood-related claims from Contention 4. Instead, Waterkeeper has proffered a new contention purporting to challenge the updated flooding analyses. Thus, as to Contention 4, Waterkeepers remaining flood-related claims are now abandoned, moot, and must be disposed of. See, e.g., USEC, Inc. (Am. Centrifuge Plant), CLI-06-9, 63 NRC 433, 444 (2006).
11 See Petition at 44-45.
12 See Motion at 9.
3 Supplements, arguing they fail to remedy this deficiency.13 But, as explained in LMEs Answer to the original Contention 4,14 there is no deficiency because such analyses are not required by NRC regulations, as Waterkeepers own declarant admitted.15 The proposed amendment is inadmissible for the same reasons as beforebecause it impermissibly attacks NRC regulations, identifies no connection to any environmental analysis, and fails to assert or explain why any alleged deficiency is material to an environmental conclusion.16 Accordingly, this portion of the Motion must be DENIED.17 II.
THE MOTION ALSO SHOULD BE DENIED AS TO NEW CONTENTION 6 A.
Contention 6 Fails to Identify an Unmet Requirement In Contention 6, Waterkeeper argues that LMEs Supplement 2 to the PSAR fails to support a conclusion that the plant is adequately safe as currently designed, nor does it demonstrate acceptable environmental impacts.18 As alleged support, Waterkeeper cites three subsections from the NRCs safety regulations, 10 C.F.R. § 50.34(a)(2)-(4), and one statutory provision from the National Environmental Policy Act (NEPA), 42 U.S.C. § 4336(b)(1).19 But the Motion is devoid of meaningful engagement with these requirements. As the Commission has explained, notice pleading is not sufficient in NRC proceedings.20 It should not be necessary to speculate about what a pleading is supposed to mean.21 Here, the Board and the 13 Motion at 9.
14 LME Ans. to Pet. at 79-82.
15 Petition, [Attach] F ¶ 12.
16 LME Ans. to Pet. at 77-82 (incorporated by reference here).
17 See 10 C.F.R. §§ 2.309(c)(4), 2.335, 2.309(f)(1)(iii)-(vi).
18 Motion at 2.
19 Id. at 2 n.2-3.
20 Entergy Nuclear Operations, Inc. (Indian Point, Unit 2), CLI-16-5, 83 NRC 131, 136 (2016) (citing AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 119 (2006)).
21 Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2), CLI-99-4, 49 NRC 185, 194 (1999)
(quoting Kan. Gas & Elec. Co. (Wolf Creek Generating Station, Unit 1), ALAB-279, 1 NRC 559, 576 (1975)
(rejecting a bare claim of inconsistency with a legal requirement where the claim was not accompanied by an adequate explanation)).
4 parties are left to speculate about Waterkeepers theory of why the PSAR Supplements allegedly do not meet these specific statutory and regulatory provisionsbecause Waterkeeper offers no reasoned basis or explanation. Far more is required for an admissible contention.22 Contention 6 does not attempt to compare the information in the PSAR Supplements to any environmental obligation applicable to the CPA. Waterkeepers sole reference to an environmental requirement is a footnote citation to a numerical section of the United States Code. But Waterkeeper does not quote, paraphrase, or explain the cited statutory provision.
And Waterkeeper certainly offers no theory or explanation of how or why that unrecited statutory text is somehow unsatisfied byor even applies tothe PSAR Supplements. This conclusory assertion fails to supply a supporting reason, as required by § 2.309(f)(1)(vi).
Waterkeepers perfunctory reference to NRC safety regulations fares no better.
Waterkeepers engagement therewith is limited to a footnote quoting 10 C.F.R. § 50.34(a)(2) and (4) and citing (but not quoting) § 50.34(a)(3). Nowhere does the Motion discuss those requirements or explain a theory of how or why any particular textual provision is somehow unsatisfied by the PSAR Supplements. This omission is particularly problematic given Waterkeepers repeated conflation of CPA versus operating-license requirements; and it falls far short of supplying a supporting reason, as required by 10 C.F.R. § 2.309(f)(1)(vi).
Waterkeeper bears the burden to plead its arguments and theories; and that burden is unmet here.
B.
Waterkeepers Various Criticisms Do Not Support an Admissible Contention Even if the Board and other participants were obligated to speculate about a potential arrangement of law and fact that might support Waterkeepers legal conclusions (they are not),
or if the Board were permitted to infer such a theory where one has been omitted by the 22 USEC, CLI-06-10, 63 NRC at 472 (absent a reasoned basis or explanation, alleged non-compliance is insufficient for an admissible contention).
5 petitioner (it is not),23 Contention 6 still would be inadmissible for multiple reasons.
- 1.
Waterkeepers Environmental Claims Are Inadmissible As the basis for its environmental claims, Waterkeeper cites 42 U.S.C. § 4336(b)(1),
which is a NEPA provision (under the heading of Levels of review) describing the criteria for determining when an agency must prepare an EIS versus an EA. But LME is not obligated to prepare either. LMEs obligation was to prepare an ER.24 And it unquestionably did so. This unexplained reference to NEPAs Levels of review provision does not identify a dispute.
To the extent Waterkeepers claim assumes (without explanation) that the PSAR Supplements were required to satisfy some other (unspecified) NEPA provision, that claim is unsupported and incorrect. LME was required to provide environmental analyses in its ER, not its PSAR.25 Contention 6 does not cite, quote, confront, discuss, or otherwise engage with the ERat all. To demonstrate a genuine dispute, petitioners must confront the relevant content.26 More fundamentally, Waterkeepers claim that the PSAR Supplements do not demonstrate acceptable environmental impacts reflects a basic misunderstanding of NEPA.
The statute requires disclosure of information, not specific outcomes.27 Thus, to the extent Waterkeeper suggests that NEPA imposes a substantive threshold for acceptable impactsor some obligation to demonstrate suchits claim is legally erroneous.
- 2.
Waterkeepers Riverbank Elevation Claims Are Inadmissible As relevant here, LMEs initial flooding analyses compared the highest water levels from hypothetical dam failures and probable maximum flood (PMF) events at the LMGS site 23 DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 2), CLI-15-18, 82 NRC 135, 144 (2015).
24 See 10 C.F.R. § 50.30(f), 51.50(a).
25 Compare 10 C.F.R. § 51.50 (ER content requirements) with § 50.34 (PSAR content requirements).
26 In original Contention 4, Waterkeeper asserted (without explanation) that its PSAR criticisms somehow propagate into the ER. Contention 6 does not even assert a purported connection (much less explain it).
27 Massachusetts v. NRC, 708 F.3d 63, 67 (1st Cir. 2013).
6 against the lowest point of the Guadalupe Rivers left bank at the LMGS site.28 This comparison point was selected as a conservative value because detailed site-specific modeling had not yet been completed. In the PSAR Supplements, LME presents updated, site-specific water-level modeling. Waterkeeper attempts to criticize the elevation of the updated comparison point used therein.29 But its cursory claims fail to demonstrate a genuine dispute.
As a general matter, Waterkeepers statements reflect a significant misunderstanding of the scope and complexity of LMEs analysis. According to Waterkeeper, LME simply assum[es] that flood waters will not reach the LMGS site based on a single point elevation as a justification for not routing [modeled flood waters] across the land between the Guadalupe River models eastern extremity and the LME site.30 Waterkeeper apparently believes that LME did nothing more than select an arbitrary embankment elevation (higher than the calculated flood level) and then declare that inundation of the LMGS site will not occur. But the PSAR Supplements explain that LME did not simply assum[e] this result.
LMEs conclusion reflects state-of-the-art computational modeling and data from the U.S. Army Corps of Engineers (USACE) Hydrologic Engineering Center (HEC). LME used the River Analysis System (HEC-RAS), which generates 1-and 2-dimensional water flow models in rivers and open channels, with detailed water surface profiles and inundation maps.31 LME also used the Hydrologic Modeling System (HEC-HMS), which simulates the complete hydrologic processes of watershed systems, including hydrologic routing.32 These 28 Original PSAR at 2.4-77, 2.4-83, 2.4-170.
29 Motion at 4-5 (PMF), 7-8 (dam failure), 8-9 (flood protection).
30 Id. at 5-6, 7-8, 8-9.
31 See USACE, HEC-RAS, https://www.hec.usace.army.mil/software/hec-ras/.
32 See USACE, HEC-HMS, https://www.hec.usace.army.mil/software/hec-hms/.
7 industry-standard tools are regularly used by professional hydrologists,33 but they also are free and available to the general public.
Waterkeepers complaint that the PSAR Supplements identify neither the source of the embankment elevation nor its location is incorrect.34 LME identified the modeling tools it used, which are publicly available, as well as the modeling framework and assumptions used in the analysis.35 Notwithstanding the identification of these tools in the PSAR Supplements, and their free public availability, Waterkeeper apparently made no attempt to engage with them; did not claim to have examined them; and did not specifically dispute the accuracy or applicability of the location-specific embankment elevations, which are available therein.36 Waterkeeper offers only a bare assertion that LME should have performed a more comprehensive analysis.37 But Waterkeeper cannot conjure a genuine dispute by claiming that LMEs methodology was not comprehensive enough while simultaneously ignoring the specifics of LMEs robust analysis.38 The PSAR Supplements apply state-of-the-art computational modeling (considering wind setup, wave run-up, and projected sea level rise) to evaluate maximum water levels.39 Computed values are location-specific and consider various factors such as topography and fetch (i.e., the uninterrupted distance that wind blows over open 33 Waterkeepers declarant does not identify any formal education in hydrology or professional work experience as a hydrologist. See Motion., Encl. A at 1-2 & Encl. A-1. This may explain the declarants lack of familiarity with these industry-standard tools and practices for flood route modeling.
34 Motion at 5.
35 E.g., Supp. 2, Encl. 2 at 2.4.3-17 (The USACE provided HEC-HMS and HEC-RAS models for the Guadalupe River Basin. A comprehensive assessment verified, validated, and updated these models to serve as the base framework. The final calibrated HEC-HMS and HEC-RAS models were utilized for this study.)
36 LME also explains that its analyses used USACE cross-sections (see, e.g., Supp. 2, Encl. 3 at 2.4.4-8 to -9),
which include water bodies and their corresponding embankments, and that maximum water levels occurred (and thus were compared to the corresponding embankment) at the cross-section known as station 1.255 (Supp. 2, Encl. 3 at 2.4.4-13), which is shown, for example, in Figure 2.4.4-6 (id., Encl. 3 at 2.4.4-35).
37 Motion at 6.
38 A petitioners mere demand for more precision does not justify an NRC adjudicatory hearing. USEC, CLI-06-10, 63 NRC at 477 (citation omitted).
39 See generally Supp. 2, Encl. 2 at 2.4.3-10, 2.4.3-17 to 18; id., Encl. 3 at 2.4.4-1 to -19.
8 water). LMEs updated analyses showed that the bounding water levels for a PMF event, 40.80 ft NAVD 88, and a hypothetical dam failure, 38.42 ft. NAVD 88, would occur along a barge canal (located between the Guadalupe River and the LMGS site), known as station 1.255, which has a corresponding embankment elevation of 41.72 ft NAVD 88.40 Instead of confronting LMEs detailed modeling, Waterkeepers declarant offers a Google map for the unremarkable proposition that there are locations between the Guadalupe River and the LMGS site where the highest elevation between the two is on the order of 34 to 36 feet.41 Even assuming arguendo that statement is accurate, Waterkeeper does not explain how it disputes any portion of the PSAR. The PSAR does not contain a contrary assertion. And Waterkeeper does not claim that a PMF event or dam failure could yield water heights exceeding 34 to 36 feet at those specific locations. Nor does Waterkeeper allege either the existence of any support for that unmade assertion (e.g., modeling from HEC-HMS and HEC-RAS) or the materiality of that speculative circumstance,42 as required by 10 C.F.R. § 2.309(f)(1)(v)-(vi).
Simply put, Waterkeepers rudimentary map and vague claims are wholly inadmissible.43
- 3.
Waterkeepers Green Lake Comments Are Inadmissible Waterkeeper alleges that LMEs analysis is flawed due to an alleged gap, whereby the analysis omits consideration of Green Lake.44 However, this claim is unsupported (and incorrect) and fails to demonstrate a genuine dispute. LMEs analysis thoroughly considered the 40 Id., Encl. 2 at 2.4.3-18; id., Encl. 3 at 2.4.4-13.
41 Motion at 6 n.24; id., Attach. A at 5 (¶ 19) and 6 (Fig. 1).
42 The bounding flood scenarioi.e., the only one material to the safety analysisis the surge/seiche scenario (see, e.g., Supp. 2, Encl. 4), which Waterkeeper wholly disregards.
43 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 323 (2012) (contentions admitted for litigation must point to a deficiency in the application, and not merely suggestions of other ways an analysis could have been done.).
44 Motion at 5 (citing id., Attach. A at ¶ 16).
9 potential for connections and interactions between and among the relevant watersheds.45 Indeed, it expressly considered potential connections across Green Lake. As one example, PSAR Figure 2.4.3-26 shows the HEC-RAS cross section locations used in LMEs analysis.46 Three of those cross sections (labeled 14.5044, 12.9444, and 12.0915) stretch from the Guadalupe River Basin and the San Antonio River Basin (on the left side of the figure)directly across Green Lake toward the LME site (on the right side of the figure), which is part of the Coloma Creek model.
Waterkeeper appears unaware of (and did not dispute) this information, which is clearly presented inand not omitted fromLMEs analysis. There is no gap. Waterkeeper simply overlooked the relevant information, making its claim unsupported and inadmissible.
- 4.
Waterkeepers Dam Comments Lack Good Cause and Are Inadmissible Waterkeeper criticizes LMEs discussion of Potential Dam Failures because it does not analyze potential seismic or hydraulic failure modes for the Canyon Dam.47 However, this argument is untimely. As Waterkeeper acknowledges, the circumstance it seeks to challenge (the absence of seismic or hydraulic failure mode analyses) was present in both the original and Supplement 2 to the PSAR.48 This circumstance is not new; it could have been challenged at the outset of this proceeding. Accordingly, Waterkeeper lacks good cause for its tardy claim.
Furthermore, this claim is inadmissible. Waterkeeper fails to explain why LME was obligated to present such analyses. Waterkeeper cites a guidance document,49 but those do not 45 See, e.g., Encl. 2 at 2.4.3-17 (The first analysis is the PMF over Guadalupe River Basin combined with 500-year flow from San Antonio River Basin. The second analysis is the PMF over San Antonio River Basin combined with 500-year flow from Guadalupe River Basin. (emphasis added)).
46 Id. at fig. 2.4.3-26 [PDF p. 83].
47 Motion at 6-8.
48 Id. at 7 (quoting id., Attach. A at ¶ 24).
49 JLD-ISG-2013-01, Interim Staff Guidance for Assessment of Flooding Hazards Due to Dam Failure (July 29, 2013) (ML13151A153) (ISG).
10 impose legal requirements.50 Even if they did, Waterkeepers claim would fare no better. The guidance only recommends such analyses if certain preconditions are metnamely, that the dam cannot withstand its location-specific PMF or seismic hazards, respectively.51 Waterkeeper does not assert that either precondition is satisfied here. And it certainly identifies no support or explanation for that unmade assertion.52 Waterkeeper cannot conjure a genuine dispute by referencing a conditional requirement and then offering silence (or speculation) as to whether the condition is even satisfied. Lastly, Waterkeepers unexplained speculation that a different type of analysis would show higher flood levels53 is unsupported and silent as to materiality.54 Ultimately, no part of Contention 6 meets all six admissibility criteria in 10 C.F.R. § 2.309(f)(1).
III.
CONCLUSION The Board should DENY the Motion because neither Amended Contention 4 nor new Contention 6 are admissible and because certain portions thereof also lack good cause.
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 14th day of January 2026 50 Intl Uranium (USA) Corp. (Request for Materials License Amendment), CLI-00-1, 51 NRC 9, 19 (2000).
51 ISG § 1.4.2, 1.4.3 (PMF) 52 Waterkeeper did not even confront basic publicly-available information showing the Canyon Dam withstands its PMF and is located in the lowest seismic hazard zone in the United States. See, e.g., USACE, Canyon Dam Water Control Manual at A-4 [PDF p. 104] (Sept. 2018) (dam height 974.0 ft. versus PMF height 973.4),
available at https://water.usace.army.mil/cda/documents/wc/3330/CANYON%20DAM%20AND%20LAKE
%20WATER%20CONTROL%20MANUAL.pdf; USGS, Seismic Hazard Map (Jan. 10, 2024), available at https://www.usgs.gov/media/images/hazard-map-2023-50-state-update-national-seismic-hazard-model-project.
53 Motion at 8 (citing id., Attach. A at 8 ¶ 28).
54 See USEC, CLI-06-9, 63 NRC at 472 (unexplained expert assertions are inadequate).
DB1/ 165560236.4 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 January 14, 2026 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 31, 2025 MOTION FOR NEW AND AMENDED CONTENTIONS 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