ML26023A195
| ML26023A195 | |
| Person / Time | |
|---|---|
| Site: | 05000614 |
| Issue date: | 01/23/2026 |
| From: | Lighty R, Polonsky A Long Mott Energy, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 57587, ASLBP 25-991-01-CP-BD01, 50-614-CP | |
| Download: ML26023A195 (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 23, 2026 LONG MOTT ENERGY, LLCS ANSWER IN OPPOSITION TO WATERKEEPERS MOTION FOR RETROACTIVE EXTENSION OF TIME TO FILE A REPLY Pursuant to 10 C.F.R. § 2.323(c) and the Boards Initial Prehearing Order,1 Long Mott Energy, LLC (LME) files this answer in opposition to the Motion for Leave to File Out of Time filed by San Antonio Bay Estuarine Waterkeeper (Waterkeeper) on January 22, 2026 (Motion).2 In the Motion, Waterkeeper retroactively seeks a one-day extension of the January 21, 2026 deadline to file a reply in support of its December 31, 2025 motion for new and amened contentions. As explained below, the Motion should be denied.3 1
Memorandum and Order (Initial Prehearing Order) (Aug. 28, 2028) (ML25240B507) (Prehearing Order).
2
[Waterkeeper]s Motion for Leave to File Out of Time (Jan. 22, 2026) (ML26022A348). The Motion, as originally filed on Jan. 22, 2026, at 2:41 p.m. EST, was titled [Waterkeeper]s Motion for One-Day Extension of Time to File Reply Pleading (ML26022A311) and did not include any attachments. The Board sua sponte instructed Waterkeeper to re-file the Motion with a different title and to include the proposed Reply as an attachment. Email from G. Rock to M. Perales and S. Hanson, Motion for Leave to File Out of Time (Jan. 22, 2026, 3:42 p.m. EST). The Motion, as referred to herein, corresponds to the revised Motion, filed on Jan. 22, 2026, at 4:38 p.m. EST, and the proposed Reply, which is Exhibit 1 thereto.
3 LME endeavors to work cooperatively and collegially with the other participants in this proceeding and does not oppose every procedural request as a matter of course. When prior requests have been reasonable, LME has not opposed them. See, e.g., [Waterkeeper]s Motion for Leave to Exceed the Page Limit for Reply Pleading at 2 (Jan. 15, 2026) (ML26015A530) (noting LME did not oppose that request). LME opposes the instant request because it is not reasonable.
2 I.
The Motion Is Untimely and Seeks a Retroactive Extension First, Waterkeepers Motion is untimely. The Commission has explained that it disfavor[s] motions for extensions of time that are themselves filed out-of-time.4 Here, the Boards Prehearing Order provides that [a] motion for extension of time in this proceeding shall be submitted via the E-Filing system at least three business days before the due date for the pleading or other submission for which an extension is sought.5 Because the due date for the Reply was January 21, 2026, the Motion was required to be filed by January 16, 2026. Contrary to that requirement, the Motion was filed on January 22, 2026. Thus, the Motion is untimely by six days. That, alone, provides a clear basis to deny the Motion.
Second, the Motion seeks a retroactive extension without sufficient justification. Not only is the Motion itself untimely, it also was filed after the expiration of the Reply deadline Waterkeeper seeks to avoid. The Commission expects that parties will file motions for extensions of time so that they are received by the [NRC] well before the time specified expires.6 To be sure, the Commission has acknowledged that retroactive extensions (i.e., leave to file out of time) may be granted in very narrow circumstances, if unanticipated events, such as a weather event or unexpected health issues prevented timely filing.7 But the Motion identifies no weather event or unexpected health issues (or other circumstance of equivalent magnitude) that prevented it from filing its Motion before the Reply deadline. That provides a second basis to deny the Motion.
4 Tenn. Valley Auth. (Bellefonte Nuclear Plant, Units 1 & 2), CLI-10-26, 72 NRC 474, 477 (2010).
5 Prehearing Order at 5.
6 Bellefonte, CLI-10-26, 72 NRC at 477 & n.18 (quoting Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 455 (1981)).
7 Amendments to Adjudicatory Process Rules and Related Requirements; Final rule, 77 Fed. Reg. at 46,562, 46,571-72 (Aug. 3, 2012).
3 II.
The Motion Fails to Demonstrate Good Cause The NRCs Rules of Practice and Procedure authorize extensions of adjudicatory deadlines, or excuse late filings, only upon demonstration of good cause.8 As the Commission has explainedin a published policy statementgood cause for an adjudicatory extension exists only when warranted by unavoidable and extreme circumstances.9 Absent circumstances that are both unavoidable and extreme, adjudicatory participants are expected to adhere to the time frames specified in the Rules of Practice, and the agency must endeavor to enforce compliance with these schedules.10 Waterkeeper presents three statements as alleged justification for its late filing, but none demonstrates good cause.
First, the Motion includes a one-sentence statement as follows:
Just before the filing deadline, Counsel for Petitioner, awaiting a document from Petitioners expert, notified counsel for the NRC Staff and LME by email that they were experiencing technical difficulties that delayed his finalizing the document and transmitting it to her for filing.11 As the movant, Waterkeeper had the burden to explain how or why this statement identifies good cause.12 It did not do so. Nor is any explanation apparent. LME is unaware of any precedent in which mere notice to other participants of a late filing has been found to constitute good cause for that late filing. Furthermore, Waterkeepers claim that such notification was sent to counsel for LME and the NRC Staff before the filing deadline appears to be incorrect. The filing deadline was 11:59 p.m. Eastern Time13 on January 21, 2026.
8 10 C.F.R. § 2.307(a).
9 Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 21 (1998).
10 Id.
11 Motion at 2.
12 See 10 C.F.R. § 2.325 (the proponent of an order has the burden of proof).
13 10 C.F.R. § 2.306(c)(2).
4 In contrast, the referenced email received by LME indicates it was sent at 12:02 a.m. Eastern Time on January 22, 2026.14 LME received that email, in the middle of the night, after the filing deadline had expired. That circumstance does not support the relief requested in the Motion.
The above-quoted sentence also indicates that Waterkeepers declarant was delayed in finalizing a documentin the final minutes before the filing deadlinedue to technical difficulties.15 As a general matter, this statement is too vague to provide an affirmative demonstration of good cause. Waterkeeper does not describe the alleged difficulties nor identify any reason they were either extreme or unavoidable (much less both). Nor does Waterkeeper identify the document involved or explain why the non-final status thereof somehow prevented the timely filing of the Reply itself (which, presumably, is a separate document). The sheer vagueness of these claims prevents the Board from evaluating them against the relevant standardand renders them incapable of fulfilling Waterkeepers pleading burden to demonstrate good cause.
Furthermore, technical difficulties are a routine occurrence and do not automatically excuse untimely filings or justify post-hoc deadline extensions. As the Commission has explained, NRC contention admissibility and timeliness requirements demand a level of discipline and preparedness on the part of petitioners.16 It should come as no surprise to Waterkeeper (which is represented by counsel and has submitted more than two-dozen electronic 14 See Attachment A hereto. See also generally Pub. Serv. Co. of Okla. (Black Fox Station, Units 1 and 2),
ALAB-505, 8 NRC 527, 532 (1978) (counsel appearing before NRC licensing boards have a manifest and iron-clad obligation of candor.).
15 Waterkeeper routinely chooses to file its pleadings moments before the deadline. See, e.g., Waterkeepers replies in support of its Motion to Amend Contention 4 (01/05/2026 at 11:45 PM), Motion to Amend Contention 1 (12/29/2025 at 11:56 PM), Petition Supplement (09/26/2025 at 11:59 PM), and Petition (09/12/2025 at 11:50 PM).
16 Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-03-17, 58 NRC 419, 428-29 (2003)
5 filings in this proceeding) that the preparation and transmission of electronic documents can encounter hiccups. Such an occurrence is neither exceptional, unusual, nor without precedent.17 And it is not the type of unavoidable and extreme circumstance that justifies late filing in contested proceedings. Courts routinely reject claims of technical difficulties as an excuse for late filings.18 A prudent litigant or lawyer must allow time for difficulties on the filers end.19 The need to leave adequate time to accommodate electronic documents and online filing is not unanticipated and certainly was not beyond Waterkeepers control. Failure to adequately plan for foreseeable issues that are routinely encountered in litigation does not constitute good cause.
Second, Waterkeeper states that its counsel had another deadline, in a different case, on the day before its Reply deadline here, that limited the amount of time available for Counsel to address any technical difficulties.20 Waterkeeper, again, offers no explanation or argument about how this vague statement provides an affirmative demonstration of good cause.
Waterkeeper does not address why its attorneywho is one of three attorneys at the same law firm who have entered appearances on behalf of Waterkeeper in this proceeding21is the only attorney at that firm capable of addressing technical difficulties (or why an attorney would be required for such a task). Nor does Waterkeeper explain any reason why it did not seek an extension of its NRC deadline on availability grounds in a timely manner. Presumably it knew 17 Martinelli v. Farm-Rite, Inc., 785 A.2d 33, 35 (N.J. Super. 2001).
18 See, e.g., id. ([A] computer malfunction is not sufficient justification for late submission of documents to the court.).
19 Justice v. Town of Cicero, Ill., 682 F.3d 662, 665 (7th Cir. 2012).
20 Motion at 2.
21 See Notice of Appearance of Claire Krebs (Sept. 2, 2025) (ML25245A261); Notice of Appearance of Marisa Perales (Sept. 3, 2025) (ML25245A256); Notice of Appearance of Sidra Hanson (Dec. 1, 2025)
(ML25335A128).
6 of the existence of the other deadline before January 22, 2026. Regardless, the Commission has routinely rejected the I was busy excuse; voluntary participation by litigants or their lawyers in multiple simultaneous proceedings is not a valid justification for missing or extending adjudicatory deadlines.22 Indeed, Waterkeeper offered a similar excuse for a different extension request earlier in this proceeding, which the Commission denied because the professional obligations of [Waterkeepers] counsel... do not constitute good cause to grant an extension.23 Finally, Waterkeeper offers the platitude that [n]either NRC Staff nor LME will be prejudiced by this requested one-day extension.24 Again, this assertion is unaccompanied by any explanation of how it relates to, or satisfies, the good cause standard. The Commission:
explicitly discourages extensions of deadlines absent extreme circumstances, for fear that an accumulation of seemingly benign deadline extensions will in the end substantially delay the outcome of the case.25 Notwithstanding Waterkeepers attempt to frame its request as benign, it has not identified a single unavoidable or extreme circumstance. That necessitates rejection of the Motion.
III.
CONCLUSION Filing deadlines exist for a reason. The Board should not excuse Waterkeepers failure to meet them without compelling justification. Because Waterkeeper provides none here, the Motion should be denied and the untimely Reply should not be entertained.
22 Consol. Edison Co. of N.Y. (Indian Point, Units 1 & 2), CLI-01-8, 53 NRC 225, 229-30 (2001).
23 Order of the Secretary at 2 (July 14, 2025) (ML25195A229).
24 Motion at 2.
25 Hydro Res., Inc. (Albuquerque, NM), CLI-99-1, 49 NRC 1, 3 (1999) (emphasis added).
7 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 23rd day of January 2026
1 Lighty, Ryan K.
From:
Marisa Perales <marisa@txenvirolaw.com>
Sent:
Thursday, January 22, 2026 12:02 AM To:
Lighty, Ryan K.; Polonsky, Alex S.; Julie Ezell; Sam Stephens; Kris Wilson; david.roth@nrc.gov Cc:
Sidra Hanson
Subject:
Long Mott Generating Station--Communication to confer re: one-day extension of deadline
[EXTERNAL EMAIL]
Good evening, I am writing because I am quickly approaching our deadline to submit a reply to the Answers to Waterkeeper's Motion to Amend Contention 4 and add a new contention, but I am still awaiting a document from our expert. We are having technical difficulties that have delayed his finalizing the document and transmitting it to me for filing. Thus, I will be seeking a one-day extension of time to submit our Reply--though, perhaps I only need a few extra minutes.
Please let me know if you object to this request or whether we may indicate that you have no objection.
Thank you, Marisa Marisa Perales Attorney Perales, Allmon & Ice, P.C.
1206 San Antonio Street, Austin, Texas 78701 Phone: (512) 469-6000 l Fax: (512) 482-9346 NOTICE: This and any attached documents are intended only for the use of the individual or entity to whom this is addressed and may contain information that is privileged, confidential, or work product and exempt from disclosure under applicable law. If you are not the intended recipient or agent thereof, any use, dissemination, distribution, or copying of this communication is strictly prohibited, and you are hereby requested to telephone the sender immediately of the error and to delete this message and attached documents and destroy any printed copies thereof. Thank you.
ATTACHMENT A
DB3/ 205230800.3 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 23, 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 IN OPPOSITION TO WATERKEEPERS MOTION FOR RETROACTIVE EXTENSION OF TIME TO FILE A REPLY 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