ML26048A655

Long Mott Energy LLCs Notice of Appeal of LBP-26-1 and Brief in Support of Appeal of LBP-26-1

ML26048A655
Person / Time
Site:	05000614
Issue date:	02/17/2026
From:	Lighty R, Polonsky A Long Mott Energy, Morgan, Morgan, Lewis & Bockius, LLP
To:	NRC/OCM
SECY RAS
References
RAS 57617, ASLBP 25-991-01-CP-BD01, 50-614-CP, LBP-26-1
Download: ML26048A655 (0)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of:

LONG MOTT ENERGY, LLC (Long Mott Generating Station)

Docket No. 50-614-CP February 17, 2026 LONG MOTT ENERGY, LLCS NOTICE OF APPEAL OF LBP-26-1 Pursuant to 10 C.F.R. § 2.311(d)(1), Long Mott Energy, LLC (LME) hereby provides its Notice of Appeal of the Atomic Safety and Licensing Boards January 22, 2026 Memorandum and Order, issuance number LBP-26-1.1 In that decision, the Board granted San Antonio Bay Estuarine Waterkeepers (Waterkeeper) August 11, 2025, hearing request and petition to intervene (Petition), finding that Waterkeeper had standing and admitting two financial qualifications-related contentions.2 As explained in the accompanying Brief in Support of LMEs Appeal of LBP-26-1, the Petition should have been wholly denied.

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 17th day of February 2026 1 Long Mott Energy, LLC (Long Mott Generating Station), LBP-26-1, 103 NRC __ (Jan. 22, 2026) (slip op.).

2 [Waterkeeper]s Petition to Intervene and Request for Hearing (Aug. 11, 2025) (ML25223A335).

[THIS PAGE INTENTIONALLY LEFT BLANK]

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of:

LONG MOTT ENERGY, LLC (Long Mott Generating Station)

Docket No. 50-614-CP February 17, 2026 BRIEF IN SUPPORT OF LONG MOTT ENERGY, LLCS APPEAL OF LBP-26-1 RYAN K. LIGHTY, Esq.

ALEX S. POLONSKY, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1111 PENNSYLVANIA AVENUE, NORTHWEST WASHINGTON, D.C. 20004 Counsel for Long Mott Energy, LLC

ii TABLE OF CONTENTS I.

INTRODUCTION............................................................................................................. 1 II.

BACKGROUND............................................................................................................... 3 A.

Financial Qualification (FQ) Requirements........................................................... 3 B.

Standard of Review on Appeal.............................................................................. 5 III.

THE COMMISSION SHOULD REVERSE THE BOARDS DECISION TO GRANT THE PETITION.................................................................................................. 5 A.

The Board Erred in Admitting Reformulated Contention 3A............................... 6

1.

The Boards Conclusion That Waterkeeper Raised a Genuine Material Dispute as to LMEs Satisfaction of 10 C.F.R.

§ 50.12(a)(2)(ii) Rests on Legal Error....................................................... 7

a.

The Board Committed Legal Error by Evaluating the Merits............................................................................................. 7

b.

The Board Committed Legal Error by Supplying Its Own Theories.......................................................................................... 9

c.

The Boards Self-Supplied Theories Are Legally Erroneous...... 11

2.

The Boards Conclusion That Waterkeeper Raised a Genuine Material Dispute as to LMEs Satisfaction of 10 C.F.R.

§ 50.12(a)(2)(vi) Rests on Legal Error.................................................... 13

a.

The Board Abused Its Discretion and Committed Legal Error by Relying on a Material Misreading of the Exemption Request...................................................................... 14

b.

The Board Committed Legal Error by Evaluating the Merits........................................................................................... 15

c.

The Board Committed Legal Error by Concluding That a Difference Between Two Regulatory Applications Constitutes a Genuine Dispute..................................................... 16 B.

The Majority Erred in Admitting Reformulated Contention 3B......................... 17

1.

The Majoritys Conclusion That Speculating About the Content of an Application Is Sufficient to Demonstrate a Genuine Dispute Therewith Is Legally Erroneous............................................................... 19

2.

The Majoritys Conclusion That an Internet-Sourced Estimate of the Global Cost to Design, License, and Construct Two Different Facilities (a Reactor and a Fuel Cycle Facility), in Two Different States, by Two Different Potential Applicants Was a Sufficiently Reliable Proxy for the Unreviewed Site-Specific Cost Estimate in the CPA to Construct (but Not Design or License) LMGS (a Reactor) in Seadrift, Texas, Rests on Legal Error............................... 20

iii

3.

The Majoritys Conclusion That Speculating About Future Congressional Appropriations Demonstrates a Genuine Dispute Is Legally Erroneous.................................................................................... 23

4.

The Majoritys Reformulation of Contention 3B Reflects a Legally Erroneous Interpretation of the Part 70 FQ Standard.............................. 25 IV.

THE COMMISSION SHOULD CLARIFY WHETHER THE PROXIMITY PRESUMPTION IS AVAILABLE IN NON-LLWR PROCEEDINGS......................... 26 A.

The Commission Has Inherent Supervisory Authority to Consider This Issue..................................................................................................................... 27 B.

Strong Factual and Policy Rationales Support the Use of Traditional Standing Analyses in Non-LLWR Proceedings.................................................. 28 C.

The Commission Should Accept the Boards Invitation to Re-Evaluate the Proximity Presumption........................................................................................ 29 V.

CONCLUSION................................................................................................................ 30

iv TABLE OF AUTHORITIES Federal Court Cases Minn. v. NRC, 602 F.2d 412 (D.C. Cir. 1979).................................................................................................. 28 Sierra Club v. NRC.,

862 F.2d 222 (9th Cir. 1988)..................................................................................................... 8 Summers v. Earth Island Inst.,

555 U.S. 488 (2009).................................................................................................................. 30 United States v. Chem. Found., Inc.,

272 U.S. 1 (1926)...................................................................................................................... 24 NRC Cases AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-06-24, 64 NRC 111 (2006)................................................................................................. 5 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-09-7, 69 NRC 235 (2009)............................................................................................. 5, 19 Balt. Gas & Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units 1 & 2),

CLI-98-14, 48 NRC 39 (1998)................................................................................................. 16 Calvert Cliffs 3 Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3),

CLI-09-20, 70 NRC 911 (2009)............................................................................................... 30 Carolina Power & Light Co. (Shearon Harris Nuclear Plant),

ALAB-837, 23 NRC 525 (1986)................................................................................................ 8 Crow Butte Res., Inc. (Marsland Expansion Area),

CLI-14-2, 79 NRC 11 (2014)..................................................................................................... 5 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3),

CLI-05-24, 62 NRC 551 (2005)............................................................................................... 11 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3),

CLI-01-24, 54 NRC 349 (2001)............................................................................................... 19 DTE Electric Co. (Fermi Nuclear Power Plant, Unit 2),

CLI-15-18, 82 NRC 135 (2015)......................................................................................... 10, 23 Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant & Big Rock Point Site),

CLI-22-8, 96 NRC 1 (2022)..................................................................................................... 13 Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station),

CLI-16-17, 84 NRC 99 (2016)................................................................................................. 12 Entergy Nuclear Vt., LLC (Vt. Yankee Nuclear Power Station),

CLI-07-1, 65 NRC 1 (2007)..................................................................................................... 27

v Exelon Generation Co., LLC (Peach Bottom Atomic Power Station, Units 2 & 3),

CLI-05-26, 62 NRC 577 (2005)............................................................................................... 26 Fansteel, Inc. (Muskogee, Oklahoma Site),

CLI-03-13, 58 NRC 195 (2003)............................................................................................... 22 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4),

CLI-91-13, 34 NRC 185 (1991)............................................................................................... 28 Ga. Inst. of Tech. (Ga. Tech Research Reactor),

LBP-95-6, 41 NRC 281 (1995)................................................................................................. 15 Holtec Decom. Intl (Palisades Nuclear Plant),

LBP-25-4, 101 NRC 133 (2025)................................................................................................. 9 Holtec Intl (HI-STORE Consol. Interim Storage Facility),

CLI-21-7, 93 NRC 215 (2021)................................................................................................. 11 Honeywell Intl, Inc. (Metropolis Works Uranium Conversion Facility),

CLI-13-1, 77 NRC 1 (2013)..................................................................................................... 11 Honeywell Intl, Inc. (Metropolis Works Uranium Conversion Facility),

LBP-12-6, 75 NRC 256 (2012)................................................................................................. 11 Interim Storage Partners, LLC (WCS Consol. Interim Storage Facility),

CLI-20-14, 92 NRC 463 (2020)............................................................................................... 15 Interim Storage Partners, LLC (WCS Consol. Interim Storage Facility),

CLI-20-15, 92 NRC 491 (2020)............................................................................................... 17 Long Mott Energy, LLC (Long Mott Generating Station),

LBP-26-1, 103 NRC __ (Jan. 22, 2026)............................................................................ passim Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 & 4),

CLI-12-7, 75 NRC 379 (2012)................................................................................................... 5 N. Atl. Energy Serv. Corp. (Seabrook Station, Unit 1),

CLI-98-18, 48 NRC 129 (1998)............................................................................................... 28 N. Atl. Energy Serv. Corp. (Seabrook Station, Unit 1),

CLI-99-6, 49 NRC 201 (1999)................................................................................................. 24 N. States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2),

ALAB-107, 6 AEC 188 (1973)................................................................................................. 26 N. States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2),

ALAB-455, 7 NRC 41 (1978).................................................................................................. 28 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1),

CLI-12-5, 301 (2012)................................................................................................................ 17 Nuclear Innovation N. Am., LLC (S. Tex. Project, Units 3 & 4),

CLI-16-2, 83 NRC 13 (2016)..................................................................................................... 5 Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2),

CLI-16-9, 83 NRC 472 (2016)................................................................................................... 5

vi Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation),

CLI-98-13, 48 NRC 26 (1998)................................................................................................. 22 Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation),

LBP-98-7, 47 NRC 142 (1998)................................................................................................. 22 Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2),

CLI-77-8, 5 NRC 503 (1977)................................................................................................... 27 Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18 (1998)............................................................................................. 5, 28 Tenn. Valley Auth. (Clinch River Nuclear Site Early Site Permit Application),

CLI-18-5, 87 NRC 119 (2018)................................................................................................... 5 Tex. Util. Generating Co. (Comanche Peak Steam Electric Station, Units 1 & 2),

ALAB-714, 17 NRC 86 (1983)................................................................................................ 28 USEC Inc. (Am. Centrifuge Plant),

CLI-06-9, 63 NRC 433 (2006)................................................................................................... 5 USEC, Inc. (Am. Centrifuge Plant),

CLI-06-10, 63 NRC 451 (2006)............................................................................................... 22 Acts of Congress Accelerating Deployment of Versatile, Advanced Nuclear for Clean Energy Act of 2024, Pub. L. No. 118-67, 138 Stat. 1448 (2024).............................................................................. 28 Commerce, Justice, Science; Energy and Water Development; and Interior and Environment Appropriations Act, 2026, Pub. L. No. 119-74, 140 Stat. __.............................................................................................. 25 Nuclear Energy Innovation and Modernization Act, Pub. L. No. 115-439, 132 Stat. 5565 (2019)............................................................................. 28 NRC Regulations 10 C.F.R. § 2.309............................................................................................................................ 5 10 C.F.R. § 2.311........................................................................................................................ 1, 5 10 C.F.R. § 2.335.......................................................................................................................... 11 10 C.F.R. § 50.12...................................................................................................................... 6, 11 10 C.F.R. § 50.160........................................................................................................................ 28 10 C.F.R. § 50.33............................................................................................................................ 3 10 C.F.R. § 70.23.................................................................................................................... 17, 25 10 C.F.R. Part 50............................................................................................................................. 1 10 C.F.R. Part 50, Appendix C....................................................................................................... 3 10 C.F.R. Part 70......................................................................................................................... 1, 4

vii Federal Register Notices Executive Order 14300, Ordering the Reform of the Nuclear Regulatory Commission, 90 Fed. Reg. 22,587 (May 29, 2025)........................................................................................ 29 Final Rule; Rules of Practice for Domestic Licensing Proceedings Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168 (Aug. 11, 1989)....................................................................................... 19 Part 50-Licensing of Production and Utilization Facilities, 33 Fed. Reg. 9,704 (July 4, 1968)............................................................................................... 3 Specific Exemptions; Clarification of Standards, 50 Fed. Reg. 50,764 (Dec. 12, 1985)........................................................................................ 12 Other Authorities David A. Repka & Tyson R. Smith, Proximity, Presumptions, and Public Participation:

Reforming Standing at the Nuclear Regulatory Commission, 62 ADMIN. L. REV. 583 (2010).................................................................................................. 30 Financial Qualifications for Reactor Licensing Rulemaking; Regulatory Basis Document (Oct. 2016) (ML15322A185)....................................................................................... 3, 4, 5, 25 GAO-23-105997, Nuclear Power: NRC Needs to Take Additional Actions to Prepare to License Advance Reactors (July 2023).................................................................................... 27 NRR Office Instruction LIC-103, Rev. 2, Exemptions from NRC Regulations (July 2020) (ML19155A121).................................................................................................... 13 Safety Evaluation Related to the U.S. SFR Owner, LLC Construction Permit Application for the Kemmerer Power Station Unit 1 (Nov. 2025) (ML25329A252).................................... 5 Staff Requirements-SECY-13-0124-Policy Options for Merchant (Non-Electric Utility)

Plant Financial Qualifications (April 24, 2014) (ML14114A358)................................... 4, 6, 12 Staff Requirements-SECY-18-0026-Proposed Rule: Financial Qualifications Requirements for Reactor Licensing (July 14, 2022) (ML22195A097).................................... 4 Transcript of Long Mott Generating Station, Hearing (Dec. 8, 2025)................................... 21, 24

1 I.

INTRODUCTION Pursuant to 10 C.F.R. § 2.311(d)(1), Long Mott Energy, LLC (LME) files this Brief in Support of its Notice of Appeal of LBP-26-1. This proceeding involves LMEs construction permit (CP) application (CPA),1 filed under 10 C.F.R. Part 50, for the proposed Long Mott Generating Station (LMGS). The project is being funded, in part, under the U.S. Department of Energys (DOE) Advanced Reactor Demonstration Program (ARDP) for the purpose of demonstrating X Energy, LLCs (X-energy) Xe-100 reactor technology.

In LBP-26-1,2 the Board granted a petition to intervene and request for a hearing (Petition) filed by San Antonio Bay Estuarine Waterkeeper (Waterkeeper), proposing four contentions purporting to challenge the CPA.3 As relevant here, the Board determined that certain portions of Waterkeepers Proposed Contention 3,4 on the topic of financial qualifications (FQ), were admissible. The Board reformulated and admitted, as Contention 3A,5 Waterkeepers challenge to LMEs request for a regulatory exemption that would allow the NRC to apply the FQ requirements in 10 C.F.R. Part 70, rather than Part 50, in reviewing the CPA (Exemption Request).6 Two of the three judges (the Majority) also reformulated and admitted, as Contention 3B, Waterkeepers challenge to LMEs satisfaction of the Part 70 FQ requirementsa conclusion from which the third judge dissented.7 1 Letter from E. Stones, LME, to NRC Document Control Desk, Submittal of the [LME] [CPA] for [LMGS]

(Mar. 31, 2025) (Package ML25090A057 (public version)) (CPA) (as relevant here, the CPA includes: Part I, General and Financial Information (ML25090A059); Part II, Preliminary Safety Analysis Report (ML25090A061); and Part V, Non-Applicabilities and Exemptions (ML25090A065)).

2 Long Mott Energy, LLC (Long Mott Generating Station), LBP-26-1, 103 NRC __ (Jan. 22, 2026) (slip op.).

3 [Waterkeeper]s Petition to Intervene and Request for Hearing (Aug. 11, 2025) (ML25223A335) (Petition).

4 Id. at 26-44.

5 Long Mott, LBP-26-1, 103 NRC at __ (slip op. at 33-38).

6 CPA, Part V at V-X to V-XVII (Section 2.2.1) (Exemption Request).

7 Long Mott, LBP-26-1, 103 NRC at __ (slip op. at 38-42) (Majority decision); id. at __ (slip op. at [Dissent] 1-2)

(Wolfe, A.J., dissenting).

2 As explained below, these decisions to admit Contentions 3A and 3B result from reversible errors. As a fundamental matter, the Board incorrectly understood its role in adjudicating Waterkeepers challenge to the Exemption Request. The Board embarked to determine whether the Exemption Request should be granted in the first instance. The Boards improper consideration of merits issues at the contention admissibility stage is one of several legal errors that invalidate the Boards decision to admit Contention 3A. The Majoritys analysis of Contention 3B fares no better. Waterkeeper alleged a dispute regarding the percentage of LMGS construction costs that ultimately will be funded by the ARDP. But Waterkeeper did not even review the LMGS-specific cost estimate in the CPA.8 Instead, Waterkeepers purported dispute relied on two things: (1) an internet-sourced estimate of the combined design, licensing, and construction costs for two different nuclear facilities, a reactor facility and a fuel fabrication facility (to speculate about the unreviewed, LMGS-specific, construction-only cost estimate in the CPA); and (2) further speculation that Congress would not appropriate additional funds for the ARDP (which proved to be untrue). As a matter of law, contentions based on layered speculation are inadmissible; thus, the admission of Contention 3B rests on legal error.

For these and other reasons detailed below, the Commission should reverse these decisions to admit Contentions 3A and 3B. Because Waterkeeper submitted no other admissible contentions, the Petition should have been wholly denied and the Commission also should reverse the Boards decision to grant the hearing request.

Separately, the Commission should review the Boards standing conclusion. The Board found Waterkeeper was entitled to presumptive standing based on the proximity of certain of its 8 Because it is proprietary, the cost estimate was redacted in the public version of the CPA. CPA, Part I at I-III (Section 2.1, tbl. I-1). Waterkeeper could have requested and obtained access to the non-public cost estimate, as it did with other non-public information in the CPA. See Long Mott, LBP-26-1, 103 NRC at __ (slip op. at 3 n.7). But it never requested to see that information.

3 members to the proposed LMGS.9 The Board reasoned that this result was mandated by Commission case law, but it also recognized the important policy considerations that may make the prescriptive proximity presumption unsuitable for advanced reactors and inconsistent with the NRCs goal of modernizing and risk-informing its regulatory framework. If the Commission agrees, it should reverse the Boards standing decision as well.

II.

BACKGROUND A.

Financial Qualification (FQ) Requirements In 1968, the Atomic Energy Commission (AEC, the NRCs predecessor), promulgated an FQ rule, codified at 10 C.F.R. § 50.33(f) and Part 50, Appendix C, requiring CPAs to include detailed financial information.10 At the time, the rule was thought necessary to prevent potential safety lapses caused by underfunding during construction. In essence, that rule imposed a standard requiring applicants to demonstrate that they have obtainedbefore the application is even filedfunding to cover 100% of the cost of construction (Part 50 FQ Standard). The entire fleet of current operating nuclear power reactor licensees easily satisfied this standard, at the initial licensing stage, on one basis: their status as rate-regulated utilities.11 But many utilities were de-regulated in the 1980s and a new class of merchant (i.e., non-utility) power generating entities emerged.12 The NRC recognized that, given the reality of private-sector project finance, many merchant applicants would be unable to satisfy that standard.

Accordingly, the Commission directed the Staff to initiate a stand-alone rulemaking to consider whether the Part 50 FQ Standard was truly necessary for safety, or whether it could be 9 Long Mott, LBP-26-1, 103 NRC at __ (slip op. at 8-18).

10 Part 50-Licensing of Production and Utilization Facilities, 33 Fed. Reg. 9,704 (July 4, 1968).

11 See Financial Qualifications for Reactor Licensing Rulemaking; Regulatory Basis Document at 7 (Oct. 2016)

(ML15322A185) (RBD).

12 See id. at 2.

4 changed to mirror a different FQ standard that had long been used for applicants seeking licenses for special nuclear materials under 10 C.F.R. Part 70.13 Thereunder, applicants can satisfy the FQ requirements by (a) identifying funding to cover more than 50% of the cost of construction, or (b) through other means, including (but not limited to) the use of license conditions (Part 70 FQ Standard).14 In the interim, the Commission also encouraged the staff to use regulatory exemptions as a way to address existing and emergent cases, as appropriate and necessary, during the pendency of the rulemaking process and that anticipates the outcome of the proposed changes to the current financial qualification regulations.15 The NRC Staff developed a robust Regulatory Basis Document (RBD) to support that stand-alone rulemaking. Staff documented decades of experience showing no evidence of a direct correlation between initial financial qualifications review and later safe operating performance.16 Staff also documented a reasoned explanation of why the Part 70 FQ Standard is an adequate alternative to the Part 50 FQ Standard for merchant plants.17 In 2022, the Commission discontinued that stand-alone rulemaking and, instead, directed Staff to address FQ standards in the Part 53 rulemaking for advanced reactors.18 In doing so, the Commission neither repudiated the analysis in the RBD nor rescinded its direction for Staff to use FQ exemptions until the rulemaking is complete. In fact, the NRC has relied on the underlying analysis to justify exemptions in two other proceedingsone before and one after the 13 Staff Requirements-SECY-13-0124-Policy Options for Merchant (Non-Electric Utility) Plant Financial Qualifications (April 24, 2014) (ML14114A358) (SRM-SECY-13-0124).

14 See RBD at 3.

15 SRM-SECY-13-0124 at 2.

16 RBD at 11-16.

17 Id. at 19-22.

18 Staff Requirements-SECY-18-0026-Proposed Rule: Financial Qualifications Requirements for Reactor Licensing (July 14, 2022) (ML22195A097). The final Part 53 rule is expected to be published by March 27, 2026. https://www.nrc.gov/reading-rm/doc-collections/rulemaking-ruleforum/active/ruledetails?id=1108

5 original stand-alone rulemaking was relocated to the Part 53 rulemaking.19 B.

Standard of Review on Appeal Section 2.311(d)(1) permits an appeal as of right on the question of whether an initial intervention petition should have been wholly denied, or alternatively, was granted improperly.20 To be admissible, a contention must satisfy all six admissibility criteria in 10 C.F.R. § 2.309(f)(1).21 As particularly relevant here, a petitioner must demonstrate a genuine dispute on a material issue of law or fact.22 The Commission generally defers to Board decisions on contention admissibility, but will reverse a ruling if there has been an error of law or abuse of discretion.23 The Commission reviews questions of law de novo,24 and will reverse a licensing boards legal rulings if they are a departure from or contrary to established law.25 III.

THE COMMISSION SHOULD REVERSE THE BOARDS DECISION TO GRANT THE PETITION The Boards decision to admit Contention 3A, and the Majoritys decision to admit Contention 3B, resulted from legal error and should be reversed. Because Waterkeeper did not proffer at least one admissible contention, the Petition should have been wholly denied.

19 A draft of the RBD was used to support the NRCs issuance of an exemption, similar to the one requested by LME, in the South Texas Project (STP) combined license proceeding. Nuclear Innovation N. Am., LLC (S. Tex. Project, Units 3 & 4), CLI-16-2, 83 NRC 13, 30-34 (2016). More recently, the NRC Staff concluded that another exemption, similar to the one requested by LME, is justified based partly on the analysis in the RBD. See Safety Evaluation Related to the U.S. SFR Owner, LLC Construction Permit Application for the Kemmerer Power Station Unit 1 (KU1) at 14-1 to 14-5 (Nov. 2025) (ML25329A252).

20 Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 & 4), CLI-12-7, 75 NRC 379, 385 (2012) (citing Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 23 (1998) (Adjudicatory Policy); AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-06-24, 64 NRC 111, 125 (2006)).

21 USEC Inc. (Am. Centrifuge Plant), CLI-06-9, 63 NRC 433, 436-37 (2006).

22 10 C.F.R. § 2.309(f)(1)(vi).

23 Tenn. Valley Auth. (Clinch River Nuclear Site Early Site Permit Application), CLI-18-5, 87 NRC 119, 121 (2018) (citing Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-16-9, 83 NRC 472, 482 (2016); Crow Butte Res., Inc. (Marsland Expansion Area), CLI-14-2, 79 NRC 11, 13-14 (2014)).

24 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 259 (2009).

25 Id. (citation omitted).

6 A.

The Board Erred in Admitting Reformulated Contention 3A Consistent with the Commissions recommended approach during the pendency of the FQ rulemaking,26 and because LME is a merchant applicant, the Exemption Request essentially asks the NRC to apply the Part 70 FQ Standard, in lieu of the Part 50 FQ Standard, in reviewing the CPA. The NRCs regulations at 10 C.F.R. § 50.12 allow for such exemptions if, among other things, at least one special circumstance exists.

As relevant here, the Exemption Request asserts that two special circumstances are present. First, it asserts the existence of the special circumstance in 10 C.F.R. § 50.12(a)(2)(ii),

because application of the Part 50 FQ Standard is not necessary in this proceeding to achieve the underlying purpose of the rule (Special Circumstance (ii)).27 Second, it asserts the existence of the special circumstance in 10 C.F.R. § 50.12(a)(2)(vi), because there exists a material circumstance not considered when the Part 50 FQ Standard was adopted for which it would be in the public interest to grant an exemption (Special Circumstance (vi)).28 Among other information, LME referenced the justification in the RBD to support its Exemption Request.29 The Board reformulated and admitted, as Contention 3A, a portion of Waterkeepers challenge to LMEs Exemption Request. The Board concluded that Waterkeeper had raised an admissible challenge as to both of LMEs special circumstances. However, the Boards conclusions are legally erroneous and should be reversed.

26 See SRM-SECY-13-0124 at 1-2.

27 CPA, Part V at V-XVI.

28 Id., Part V at V-XVI to V-XVII.

29 See also [LME]s Answer to [Waterkeeper]s [Petition] at 64-65 (Sept. 5, 2025) (ML25248A335) (LME Ans.

to Pet.) (noting LME cited this information for its persuasive weight, not as binding authority, because its underlying logic remains valid and applicable to the instant circumstances.) (emphasis in original).

7

1.

The Boards Conclusion That Waterkeeper Raised a Genuine Material Dispute as to LMEs Satisfaction of 10 C.F.R. § 50.12(a)(2)(ii) Rests on Legal Error The Boards evaluation of Waterkeepers Special Circumstance (ii) challenge (within its proposed Contention 3) is found in Section III.C.2 of LBP-26-1.30 At the contention admissibility stage, the Boards role is to determine the admissibility of the contention, not the merits of the CPA (including the Exemption Request). However, the Boards analysis is devoid of any meaningful discussion of Waterkeepers challenge. Instead, the Board focuses on two hurdles allegedly facing LMEs Exemption Request. Here, the Board prematurely and erroneously engaged in a merits review. The Board also invented its own legal theories to justify admission of the contention. That, too, constitutes legal error because licensing boards are prohibited from supplying arguments not advanced by the petitioner. Moreover, the Boards legal theorieswhich were never briefed by the participantsare, themselves, legally erroneous. In sum, the Boards conclusion rests on multiple legal errors and should be reversed.

a.

The Board Committed Legal Error by Evaluating the Merits The Boards discussion of Waterkeepers Special Circumstance (ii) challenge does not contain a single citation to Waterkeepers pleadings or statements at oral argument. And it attributes only one claim to Waterkeeper: [A]s Waterkeeper observes, the Staffs proposal for rulemaking was not adopted by the Commission.31 That is it. The Board does not explain why that lone observation demonstrates a genuine dispute. Instead of evaluating Waterkeepers attempted challenge, the Board explains why it declined [t]o accept LMEs arguments [in the CPA] that financial qualifications are not necessary for public health and safety.32 The Boards approach is legally erroneous on multiple fronts.

30 Long Mott, LBP-26-1, 103 NRC at __ (slip op. at 33-36).

31 Id. at __ (slip op. at 34).

32 Id.

8 First, LME did not assert that financial qualifications are not necessary for public health and safety. That is a clear mis-statement of LMEs position. LME asserts that the Part 50 FQ Standard is not the sole means of achieving the underlying purpose of the rule, and it clearly proposes the use of an alternative FQ standard.33 LME does not seek to be exempt from demonstrating FQ altogether, does not argue that such qualifications are categorically not necessary, and clearly seeks to satisfy the Part 70 FQ Standard.34 The Boards mischaracterization of the CPA is a material factual error that underlies the Boards analysis.

Second, the Board misconstrues its role at this stage of the proceeding. The Board is not called upon to accept (or reject) the merits of the Exemption Request. The Boards discussion is replete with statements conflating admissibility considerations with merits issues, e.g.,

declining to adopt factual findings from the RBD; expressing a perceived need to independently reach the same conclusions presented in the Exemption Request; declining to wet its finger and attempt to discern which way the regulatory wind is likely to blow in the Part 53 rulemaking; and declaring its lack of authority to find that compliance with section 50.33(f) is not necessary.35 But these types of conclusions would only be appropriate or necessary, if ever, at the merits stage.36 In contrast, evaluating Waterkeepers thinly pled claims did not require the Board to adopt any findings or reach any substantive conclusions on the Exemption Request. That task merely required the Board to determine whether Waterkeeper had demonstrated a genuine dispute with the Exemption Request. The Boards only reference to an argument advanced by 33 CPA, Part I at I-III (noting the Exemption Request proposes to use the Part 70 FQ Standard).

34 Id. (noting information to support a determination that the [Part 70 FQ Standard] is met).

35 Id. at 34-35.

36 See, e.g., Sierra Club v. NRC., 862 F.2d 222, 226 (9th Cir. 1988) (quoting Carolina Power & Light Co. (Shearon Harris Nuclear Plant), ALAB-837, 23 NRC 525, 541 (1986)) (holding that during the contention admissibility stage, it is not the function of a licensing board to reach the merits of [the] contention.).

9 Waterkeeper simply mentions the Commissions decision to move its consideration of FQ requirements to a different rulemaking. But the Board did not explain why that observation demonstrates a genuine disputenor is any such explanation obvious.

Another recent licensing board decision provides a textbook example of the appropriate disposition of an adjudicatory challenge to an exemption request at the contention admissibility stage. Specifically, in the recent Palisades matter, the applicant cited and relied on the NRC Staffs regulatory basis for an ongoing rulemaking, describing general circumstances that would justify changing the regulations for a broad class of facilities.37 Petitioners in that case argued much like Waterkeeper herethat reliance on that regulatory basis was improper because the rulemaking had not yet been finalized. The licensing board found no need to prognosticate about the ultimate outcome of the rulemaking; and it said nothing about needing to accept or adopt statements or conclusions in the exemption request or the regulatory basis. The licensing board simply rejected the contention because petitioners [did] not provide references to support their assertions, and without more, we cannot conclude they have raised a genuine dispute with the Applicants on a material issue of law or fact.38 So too here. Simply put, the Board misunderstood its role in evaluating a contention challenging an exemption request; improperly evaluated the merits of the Exemption Request; and relied on a materially erroneous characterization thereof. All are reversible legal errors.

b.

The Board Committed Legal Error by Supplying Its Own Theories Consistent with its choice to evaluate the merits of the Exemption Request, rather than the admissibility of Waterkeepers arguments, the Board offered its own purported disputes with the Exemption Request. Specifically, the Board offered various theories of why the Exemption 37 Holtec Decom. Intl (Palisades Nuclear Plant), LBP-25-4, 101 NRC 133, 170-73 (2025).

38 Id. at 173.

10 Request could not be granted. First, the Board opined that LMEs Special Circumstance (ii) justification would be applicable to all CP applications,39 which the Board views as dispositive. Second, the Board theorized that granting the Exemption Request in this specific case would amount to a general [f]inding that compliance with section 50.33 is broadly unnecessary for any applicant, improperly intruding on the Commissions rulemaking authority.40 Third, the Board appears to criticize the analysis and question the conclusions in the RBD.41 The Boards decision to supply these theories sua sponte and then rely on them to admit the contention is legal error.

The Boards discussion in LBP-26-1 identifies no point in the record where Waterkeeper raised any of these theories or arguments. But that is not surprising, because they were not raised by Waterkeeper, and they were not briefed by the participants. The record does not indicate whether Waterkeeper would even agree with those arguments or plan to pursue them at an evidentiary hearing. The Board came up with these theories, sua sponte, to justify admitting the contention. And in practical terms, these Board-supplied arguments appear to prejudge the merits of the Exemption Request and predetermine the outcome of the evidentiary hearing.

As the Commission has repeatedly cautioned, a licensing board may not supply information that is lacking in a contention42 and may not substitute its own support for a contention or make arguments for the litigants that were never made by the litigants themselves.43 In doing that here, the Board committed reversible legal error.

39 Long Mott, LBP-26-1, 103 NRC at __ (slip op. at 34).

40 Id. at __ (slip op. at 35).

41 Id. at __ (slip op. at 34 n.143).

42 DTE Electric Co. (Fermi Nuclear Power Plant, Unit 2), CLI-15-18, 82 NRC 135, 141 (2015).

43 Id. at 149.

11

c.

The Boards Self-Supplied Theories Are Legally Erroneous As explained below, the Boards theories also are legally erroneous. First, the Board states that the central thrust of LMEs [Special Circumstance (ii) justification] is applicable to all CP applications.44 The term central thrust appears to reference the analysis in the RBD, which outlines a broadly applicable regulatory justification for replacing the Part 50 FQ Standard with the Part 70 FQ Standard. The Board then states that the requirement to find a special circumstance prior to granting an exemption implies a circumstance that is different or unique from the typical case.45 These statements reflect a theory that broadly applicable circumstances (including those analyzed during a rulemaking process) are legally incapable of satisfying the special circumstance requirement.

As alleged support for this theory, the Board cites a Commission decision, CLI-05-24, for the proposition that the Commission has interpreted special circumstances, as that term is used in 10 C.F.R. § 2.335, to mean unique to the facility rather than common to a large class of facilities.46 But the Board does not identify any controlling authority for its suggestion that absolute uniqueness is an additional (but unenumerated) requirement for finding special circumstances under 10 C.F.R. § 50.12.47 As a practical matter, that claim contradicts Commission precedent (e.g., use of the RBD 44 Long Mott, LBP-26-1, 103 NRC at __ (slip op. at 34) (emphasis in original).

45 Id. at __ (slip op. at 35).

46 Id. at __ (slip op. at 35 n.146) (citing Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-05-24, 62 NRC 551, 560 (2005)).

47 The Board cites a licensing board decision for the proposition that special circumstances in these two regulations have been interpreted similarly. Id. at __ (slip op. at 35 n.146) (citing Honeywell Intl, Inc.

(Metropolis Works Uranium Conversion Facility), LBP-12-6, 75 NRC 256, 271 (2012)). However, that aspect of the licensing board ruling has no precedential value because the decision was affirmed on other grounds and the Commission never considered the Boards analysis. Honeywell, CLI-13-1, 77 NRC 1, 18 n.101 (2013)

([b]ecause we affirm this ruling, we need not address the Boards alternative ruling and associated factual findings); Holtec Intl (HI-STORE Consol. Interim Storage Facility), CLI-21-7, 93 NRC 215, 224, n.53 (2021)

(unreviewed Board decisions are not binding).

12 to justify exemptions for STP and KU1).48 It also disregards the Commissions Statements of Consideration for Section 50.12. The Commission initially develops rules with the expectation that large numbers of exemptions will not be required, but is also aware that exemptions can serve as warning signals that a particular rule may need to be revised and can serve as a supplement to traditional evaluation mechanisms in identifying areas in need of revision.49 The Commission has identified the Part 50 FQ Standard as a rule that may need to be revised. Recognizing that such potential revisions arose from circumstances common to all merchant applicants, it nevertheless directed the NRC Staff to leverage the exemption mechanismin reliance on these broadly-applicable circumstancesas a stop-gap measure until the rulemaking was complete.50 Perhaps more directly, the Commission has expressly rejected a challenge to an exemption request that relied on such a theory:

Petitioners argue that special circumstances are not present in this proceeding with regard to this exemption because the Staff has granted [the] exemption to every nuclear power plant that has requested it. Petitioners conclude, The exemption cannot be the rule. But, our regulations specifically delineate the circumstances in which we will find special circumstances, and whether other facilities have requested or received similar exemptions is not an enumerated factor. Petitioners remind us that we have previously observed that exemptions are an extraordinary equitable remedy to be used sparingly in light of our robust rulemaking process.

But, this observation does not override the explicit language in our regulations. We do not see any conflict between that principle and the agencys actions; the NRC has granted this exemption, to one part of our extensive regulatory structure, to a handful of plants. These exemptions are hardly the rule. Additionally, in light of our recent experience with decommissioning facilities, we commenced a rulemaking to update our regulations regarding decommissioning reactors. As a result, the NRC continues to adhere to the principle that exemptions should be granted sparingly and is taking action to consider whether recently granted exemptions suggest a need to change our regulatory structure to ensure, in part, that the agencys use of exemptions remains appropriate.51 48 See supra note 19.

49 Specific Exemptions; Clarification of Standards, 50 Fed. Reg. 50,764, 50,765 (Dec. 12, 1985).

50 SRM-SECY-13-0124 at 2.

51 Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station), CLI-16-17, 84 NRC 99, 120 (2016).

13 In sum, the Boards self-supplied theory is contrary to law.

Along similar lines, the Board theorizes that granting an exemption that cites broadly applicable circumstances would be akin to infringing on the Commissions rulemaking authority.52 The Board is under the misimpression that granting the Exemption Request, in this specific proceeding, would amount to a sweeping determination that application of the Part 50 FQ Standard is not necessary to serve its purpose for CP applications generally.53 But the Board cites no authority for that suggestion. Nor does any exist. No regulation or order empowers the Board to rewrite, nullify, or broadly reinterpret Commission regulations through case-specific rulings. And the legal effect of an exemption is limited to the individual docket on which it is granted.54 Ultimately, the Boards theory finds no legal support.

For all of these reasons, the Board committed legal error in concluding that Waterkeepers challenge to LMEs identification of Special Circumstance (ii) was admissible.

2.

The Boards Conclusion That Waterkeeper Raised a Genuine Material Dispute as to LMEs Satisfaction of 10 C.F.R. § 50.12(a)(2)(vi) Rests on Legal Error The Boards evaluation of Waterkeepers Special Circumstance (vi) challenge is found in Section III.C.3 of LBP-26-1.55 As noted above, this special circumstance requires identification of a material circumstance not considered when the rule (here, the Part 50 FQ Standard) was adopted and for which it would be in the public interest to grant an exemption. But the Boards analysis is untenable from the outset because it relies on a material factual errorthe Board misreads the Exemption Request. To the extent the Board has discretion to interpret documents, 52 Long Mott, LBP-26-1, 103 NRC at __ (slip op. at 35).

53 Id. at __ (slip op. at 35) (emphasis in original).

54 See, e.g., Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant & Big Rock Point Site), CLI-22-8, 96 NRC 1, 95 n.423 (2022) ([t]he NRC considers each exemption request on a case-by-case basis.); NRR Office Instruction LIC-103, Rev. 2, Exemptions from NRC Regulations at 2 (July 2020) (ML19155A121)

(cautioning Staff against reliance on previously-approved exemptions as binding precedent).

55 Long Mott, LBP-26-1, 103 NRC at __ (slip op. at 36-37).

14 it abused that discretion here. And in doing so, it admitted a challenge that does not, in fact, identify a material dispute, which is legally erroneous. Furthermore, the Boards ruling is tainted by consideration of merits issues which, as explained above, is impermissible at the contention admissibility stage. Thus, the Boards conclusion rests on multiple legal errors.

a.

The Board Abused Its Discretion and Committed Legal Error by Relying on a Material Misreading of the Exemption Request In LBP-26-1, the Board states that LME claimed th[e] history of attempted rulemaking is the material circumstance not considered when the regulation was adopted.56 The Board reasoned that it would be an odd result if the Commissions not adopting a rule change caused this Board to conclude that LME should receive the benefit of that same rejected rule.57 LME would go a step further: that circumstance would be an odd thing to cite as the sole unconsidered material circumstance under Special Circumstance (vi). But that is not what LME did. The Commissions decision to not adopt the stand-alone rulemaking, and to move it to the Part 53 rulemaking instead, is not the circumstance that LME put forth, in the Exemption Request, as the unconsidered material circumstance that justifies the exemption.58 The Board simply misreads the CPA, which is a material factual error that invalidates the Boards legal analysis.

LMEs discussion of Special Circumstance (iv)59 certainly mentions the original stand-alone rulemaking. And LME notes that the draft RBD prepared for that rulemaking was used to support the STP exemption. LME then quotes text from the NRCs final safety evaluation for STP, discussing that exemption and describing the presence of a material circumstance not considered when the regulation was adopted.60 The unconsidered material circumstance 56 Id. at __ (slip op. at 36).

57 Id. at __ (slip op. at 37).

58 See also Tr. at 166-67 (Mr. Lighty pointing out the Boards erroneous reading of the Exemption Request).

59 CPA, Part V at V-XVI to V-XVII.

60 Id. at XVI.

15 described in LMEs block quote is that the Part 50 FQ Standard presents an unnecessary impediment to initial licensing for merchant applicants.61 LME goes on to describe the Commissions decision to move its consideration of that issue from a stand-alone rulemaking into the Part 53 rulemaking, and notes that the underlying material circumstance, the RBD analysis, and the Commissions resolution thereof (in the Part 53 rulemaking) remain in a pendant state. Reading this section specifically, and the Exemption Request as a whole, the material circumstance LME identified is the mismatch between the Part 50 FQ Standard designed for electric utility applicants who have relied on rate recovery to fund reactor construction and operationand the realities of modern merchant and non-utility applicants.

The Board abused its discretion here. A reasonable reading of the Exemption Request reveals no attempt by LME to benefit from a rejected rule based solely on the fact that the original stand-alone rulemaking was transitioned to the Part 53 rulemaking. That clear material mischaracterization improperly reframes LMEs Special Circumstance (vi) discussion. And because the Board relied on that material factual error to conclude that Waterkeepers challenge thereto is admissible, the Board committed legal error as well.62

b.

The Board Committed Legal Error by Evaluating the Merits In its Petition, under the heading titled A special condition under (vi) does not exist, Waterkeeper offers only one criticism: that the CPA does not provide a similar level of detail or assurances to those NRC relied upon in approving the STP COL.63 But Waterkeeper did not expand on that claim at all. Waterkeeper neither explained any reason why LME was required 61 Id. at XVII.

62 See, e.g., Interim Storage Partners, LLC (WCS Consol. Interim Storage Facility), CLI-20-14, 92 NRC 463, 477-78 (2020) (a contention based on a misreading of a document cannot supply the requisite support for an admissible contention); Ga. Inst. of Tech. (Ga. Tech Research Reactor), LBP-95-6, 41 NRC 281, 300 (1995) (the imprecise reading of a reference document cannot serve to generate an issue suitable for litigation.).

63 Petition at 41.

16 by law to copy the STP approach nor theorized about how or why that statement demonstrates a genuine dispute. At the contention admissibility stage, the burden was on Waterkeeper to come forward with such an explanation.64 It clearly did not.

The Boards analysis appears to concede that Waterkeeper offers only a weak attack as to Special Circumstance (vi). That should have been the end of the Boards inquiry. But instead of rejecting the contention because Waterkeeper did not meet its burden, the Board weighed the sufficiency of the application. Specifically, the Board opined that LMEs justification for its special circumstances itself is strained.65 Whether LMEs justification (which the Board mischaracterized) is strained or not goes to the merits of the contention, not its admissibility.

Moreover, LME need not demonstrate the sufficiency of the CPA in refuting a proposed contention, where the Boards role is limited to determining whether Waterkeeper demonstrated, with sufficient support, a genuine dispute. By weighing the sufficiency of the CPA as part of its admissibility calculus, the Board crossed that line, conducted a merits review under the guise of contention admissibility, and engaged in improper burden shifting, which constitutes legal error.

c.

The Board Committed Legal Error by Concluding That a Difference Between Two Regulatory Applications Constitutes a Genuine Dispute The Board ultimately concluded that Waterkeeper provided more than enough to demonstrate a genuine dispute.66 But, as noted above, the only thing Waterkeeper provided is a conclusory assertion that the CPA does not provide a similar level of detail or assurances to those NRC relied upon in approving the STP COL.67 Given that Waterkeeper did not provide anything else, the Boards finding reflects a legal conclusion that mere identification of a delta 64 Balt. Gas & Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units 1 & 2), CLI-98-14, 48 NRC 39, 41 (1998).

65 Long Mott, LBP-26-1, 103 NRC at __ (slip op. at 37).

66 Id.

67 Petition at 41.

17 between two regulatory submissions is sufficient, per se, to establish a genuine dispute. That is incorrect as a matter of law.68 For all of these reasons, the Board committed legal error or abused its discretion (or both) in concluding that Waterkeeper demonstrated genuine disputes with LMEs identification of Special Circumstances (ii) and (vi). The Boards decision to admit Contention 3A rests on those errors and should be reversed. Even if the Commission finds that only one of those conclusions was affected by legal error, the result should be the same.69 B.

The Majority Erred in Admitting Reformulated Contention 3B In its proposed Contention 3, Waterkeeper argued that LME did not satisfy the Part 70 FQ Standard, which requires the NRC to find that the applicant appears to be financially qualified to engage in the proposed activities,70 in turn requiring applicants to identify funding sources of more than 50% of the cost of the proposed activities (or make the showing through other means, if it identifies less).71 The CPA asserts that LME meets this standard because it identifies funding sources of at least 50% of the cost of constructing LMGS.

The LMGS cost estimate is provided in CPA Part I, Section 2.1. And LMEs identified funding sources are identified in CPA Part I, Appendix A, Section 3.0. The CPA explains that the LMGS project is unique because it is financially backed, through the cost-sharing ARDP, by the United States Government. More specifically, the ARDP provides a 50 percent 68 See, e.g., NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 301, 323-24 (2012) (merely identifying a different way to satisfy a requirement does not demonstrate a genuine dispute); Interim Storage Partners, LLC (WCS Consol. Interim Storage Facility), CLI-20-15, 92 NRC 491, 501 (2020) (same).

69 Long Mott, LBP-26-1, 103 NRC at __ (slip op. at 32) (Because LME only needs one special circumstance (a disjunctive requirement), a challenge to LMEs exemption request must show a genuine dispute of a material issue of law or fact as to each special circumstance raised by LME.) (emphasis in original).

70 10 C.F.R. § 70.23(a)(5).

71 See also Sec. III.B.4, infra.

18 DOE/private sector cost share on all projected costs to deliver LMGS.72 The CPA further explains that [a]n intercompany agreement is in place ensuring TDCC [The Dow Chemical Company, LMEs parent] will provide financial support to LME for construction of LMGS.73 As relevant here, Waterkeepers proposed Contention 3 argued that LME did not identify funding sources sufficient to cover 50% of the cost of constructing LMGS. But Waterkeepers arguments relied on layered speculation. On the cost side, Waterkeeper did not review the project-specific construction cost estimate for LMGS (provided in CPA Part I, Section 2.1).

Instead of seeking access to that information (which it easily could have done under the same process it used to access other non-public information in the CPA),74 Waterkeeper relied on a press release from the reactor designer, X-energy, discussing the total combined cost estimate for several projects (none involving site-specific costs for LMGS) to speculate about the amount of the LMGS-specific cost estimate in the CPA. On the funding side, Waterkeeper cited a different X-energy press release noting the amount of money Congress had appropriated to DOE, in 2021, for the ARDP through fiscal year 2025, and the approximate portion thereof that would be available for the X-energy demonstration. Waterkeeper observed that this dollar amount was less than 50% of its speculated cost estimate and then further speculated that Congress might not act to appropriate additional funds sufficient to cover 50% of those costs.75 The Majority found this approach sufficient to demonstrate a genuine dispute, then reformulated and admitted Contention 3B as follows: Assuming LMEs CP request for an exemption from section 50.33(f) is granted, the CP should only be issued with permit conditions addressing financial qualifications because LME does not otherwise meet the section 70.23(a)(5) 72 CPA, Part I at I-IX.

73 Id.

74 See Long Mott, LBP-26-1, 103 NRC at __ (slip op. at 3 n.7).

75 Petition at 32.

19 standard.76 The Boards legal judge dissented from that portion of LBP-26-1. As noted in the dissent, Judge Wolfe found that Waterkeeper had raised only the possibility of a genuine dispute, which is not enough for an admissible contention.77 As explained below, Judge Wolfe is unquestionably correct on the law. Conjecture of a dispute with speculated CPA content cannot supply a genuine dispute with the CPA itself. The Majoritys conclusion is legally erroneous on the cost side, the funding side, and as to the purported legal requirement for a license condition. And it should be reversed for those reasons.

1.

The Majoritys Conclusion That Speculating About the Content of an Application Is Sufficient to Demonstrate a Genuine Dispute Therewith Is Legally Erroneous The Commission has long held that demonstrating a genuine dispute requires a petitionerat a bare minimumto read the pertinent portions of the license application and then state the applicants position and the petitioners opposing view.78 The majoritys decision to admit Contention 3B squarely contradicts that fundamental and well-settled rule of contention admissibility. It is undisputed that Waterkeeper did not read the pertinent portions of the license application. Rather than reviewing the CPA, Waterkeeper offered speculation about its contents. The Majority found that approach sufficient for an admissible contention, effectively absolving Waterkeeper of its obligation to at least read the pertinent portions of the license application. Because that conclusion disregards controlling Commission case law, the Majoritys decision to admit Contention 3B rests on legal error and should be reversed.79 76 Long Mott, LBP-26-1, 103 NRC at __ (slip op. at 42).

77 Id. at __ (slip op. at [Dissent] 2).

78 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001) (quoting Final Rule; Rules of Practice for Domestic Licensing Proceedings Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,170 (Aug. 11, 1989)).

79 The Commission reviews questions of law de novo and will reverse a licensing boards legal rulings if they are a departure from, or contrary to, established law. Oyster Creek, CLI-09-7, 69 NRC at 259.

20

2.

The Majoritys Conclusion That an Internet-Sourced Estimate of the Global Cost to Design, License, and Construct Two Different Facilities (a Reactor and a Fuel Cycle Facility), in Two Different States, by Two Different Potential Applicants Was a Sufficiently Reliable Proxy for the Unreviewed Site-Specific Cost Estimate in the CPA to Construct (but Not Design or License) LMGS (a Reactor) in Seadrift, Texas, Rests on Legal Error In proposed Contention 3, Waterkeeper relied on a June 2023 press release from X-Energy (2023 Press Release) to speculate about two things: (1) the dollar amount of the LMGS-specific cost estimate, and (2) the percentage thereof that Congress might fund through ARDP-related appropriations.80 Even assuming arguendo that mere speculation could demonstrate a genuine dispute (it cannot), the majoritys conclusion that Waterkeepers speculation was sufficiently reliable81 still suffers from multiple legal errors.

Two circumstances illustrate the fundamental misstep here. First, the 2023 Press Release stated that the cost estimate (between $4.75 and $5.75 billion) was for the full ARDP scope.

That scope includes six tasks, only one of which is reactor construction; the other five tasks are (1) the design, and (2) the licensing of the Xe-100 standard plant; and (3) the design, (4) licensing, and (5) construction of the TRISO-X commercial fuel fabrication facility in Tennessee. Waterkeeper admitted that it found [n]o public information providing a more granular breakdown of the global cost estimate and faulted LME for not provid[ing] the necessary information to determine the costs of each project individually.82 As noted above, LME plainly provided the LMGS-specific construction cost estimate in the CPA. But, instead of reviewing that information, Waterkeeper assume[d] (read: speculated) that project costs and 80 Petition at 31-32 (citing Exhibit H, i.e., the 2023 Press Release).

81 Long Mott, LBP-26-1, 103 NRC at __ (slip op. at 41).

82 Petition at 32 & n.80.

21 ARDP funding were split evenly between both of the X-Energy projects,83 which led Waterkeeper to further speculate that only up to 21-26% of construction costs for the LME facility are currently likely to be eligible for ARDP reimbursement.

Second, the Xe-100 demonstration originally was planned to occur in Washington State through a partnership with Energy Northwest.84 But, in March 2023, X-energy instead partnered with TDCCa global corporation with extensive experience in megaproject constructionand ARDP funding was designated for LMGS, in the State of Texas.85 The 2023 Press Release presented the following unequivocal disclaimer about the cost estimate:

This range of estimated costs does not account for any site-specific cost adjustments related to the [LMGS] Seadrift site, which was announced as the location of the Xe-100 facility after this estimate was prepared, or Dows engagement in the ARDP project, which in large part began after this estimate was prepared. Dow and X-energy believe that both of those factors could ultimately lead to a reduction in costs and intend to work collaboratively to reduce costs where possible.86 By any reasonable reading, the document itself says that the cost estimate therein should not be viewed as a reliable proxy for a site-or applicant-specific estimate to construct LMGS.

LME urged the Board not to uncritically accept Waterkeepers speculative assertion that its randomly-chosen even split of the global estimate (for six tasks) in the 2023 Press Release was a stand-in for the unreviewed, LMGS-specific, construction-only cost estimate in the CPA.87 In his dissent, Judge Wolfe did the same.88 But the Majority did so anyway. For example, the 83 Id. Presumably, Waterkeepers notion of two projects lumps together the design, licensing, and construction of each facility. See also Long Mott, LBP-26-1, 103 NRC at __ (slip op. at 41) (same). In contrast, design and licensing costs are separate from construction costs, which is the only portion relevant to the FQ standard.

84 Petition, Exhibit G at [PDF p. 3-4].

85 See CPA, Part I at I-IX.

86 Petition, Exhibit H at [PDF p. 3] (emphasis added).

87 See, e.g., Tr. at 168-69 (Mr. Lighty noting the site-specific and applicant-specific discrepancy).

88 Long Mott, LBP-26-1, 103 NRC at __ (slip op. at [Dissent] 1) (It requires speculation to calculate what percentage of the construction costs for both facilities is attributable to LMGS. The two facilities are not similar, and nothing in the record guides me as to what such facilities typically cost. Nor does anything in the record support Waterkeepers speculation that the ARDP award will be split equally between the two facilities.)

22 Majority describes the press release as listing the construction cost estimates, suggesting the Majority (incorrectly) thought the press release had inadvertently disclosed the non-public estimate in the CPA (it did not). The Majority also faults LME for not claim[ing] the cost estimates contained in its 2023 press release were inaccurate at the time of issuance.89 But the 2023 Press Release is not its (i.e., LMEs); the 2023 Press Release came from X-energy. And the Majority identifies no reason why LME needed (or would even possess information) to dispute the accuracy of a global cost estimate that includes five other tasks not being undertaken by LME. These statements reveal the Majoritys uncritical reliance on Waterkeepers speculation. [T]he Board is not to accept uncritically the assertion that a document... supplies the basis for a contention.90 Had the majority scrutinized the document, it should have recognized that Waterkeepers discussion of the price of apples did not demonstrate a genuine dispute regarding the price of oranges. By failing to do so, the Majority committed legal error.

Furthermore, the Majority admits that LME called these discrepancies to its attention.91 But the Majority did not confront them. Instead, the Majority offered a non-sequitur speculating that inflation may have eroded any cost savings that may have been achieved for the LMGS project.92 As a matter of law, such speculation can never support a contention.93 And more importantly, Waterkeeper did not advance the inflation argument. In fact, Waterkeeper did not advance any argument to explain why the 2023 Press Release could be a reliable substitute for the information in the CPAit simply argued that speculation was a reasonable approach 89 Long Mott, LBP-26-1, 103 NRC at __ (slip op. at 41-42).

90 Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), LBP-98-7, 47 NRC 142, 181 (1998), affd, CLI-98-13, 48 NRC 26 (1998).

91 See Long Mott, LBP-26-1, 103 NRC at __ (slip op. at 41 n.170).

92 Id.

93 USEC, Inc. (Am. Centrifuge Plant), CLI-06-10, 63 NRC 451, 472 (2006); Fansteel, Inc. (Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195, 203 (2003).

23 given the fact that LME has not provided an LMGS-specific construction cost estimate.94 Again, LME clearly provided the information. At bottom, the Majority supplied the inflation argument itself. Although licensing boards are expected to review the relevant documents to determine whether the arguments presented by the litigants are properly supported, the Board may not substitute its own support for a contention or make arguments for the litigants that were never made by the litigants themselves.95 By supplying its own arguments to justify Waterkeepers speculation, the Board committed legal error.

3.

The Majoritys Conclusion That Speculating About Future Congressional Appropriations Demonstrates a Genuine Dispute Is Legally Erroneous On the funding side of Waterkeepers purported dispute, the Majority concludes that Waterkeepers documents are sufficiently reliable... to support its assertion that... the amount of the ARDP award is $1.2 billion.96 The Majority concluded that this reference (i.e.,

the amount of ARDP funds appropriated in 2021 for the Xe-100 demonstration) together with Waterkeepers speculation regarding the LMGS cost estimate, was sufficient to put the percentage of construction costs supplied by ARDP funding into dispute.97 But the Majority did not explain its apparent acceptance of Waterkeepers speculation that Congress would not appropriate further funds to fulfill the 50 percent cost-share described in the CPA.

The CPA contains no statements contradicting Waterkeepers assertion that Congress had only appropriated $1.2B for the Xe-100 demonstration so far. The CPA relies on LMEs 94 Petition at 32 n.80.

95 Fermi, CLI-15-18, 82 NRC at 149.

96 Long Mott, LBP-26-1, 103 NRC at __ (slip op. at 41). The Majority notes that the source for the [$1.2B]

amount of the ARDP award is a 2021 X-energy press release. Id. But the cited press release states Congress Appropriates ~$1.1B Dollars to X-energys ARDP Project, which does not support the Majoritys assertion because the amounts are different. The Majoritys invocation of the $1.2B amount may come from Waterkeepers assertion that X-energy updated that amount to $1.23 billion in a 2023 press release, see Petition at 31 (citing Ex. H), but that press release says nothing about the amount of ARDP funding. This is yet another example of uncritical acceptance of Waterkeepers alleged support.

97 Long Mott, LBP-26-1, 103 NRC at __ (slip op. at 41).

24 reasonable belief that Congress ultimately will appropriate funds to cover 50% of all projected costs to deliver LMGS.98 And the only thing Waterkeeper offered to confront LMEs expectation was rote speculation that Congress might not appropriate additional funds. Again, the Majority erred in accepting Waterkeepers speculation regarding future Congressional funding. As a matter of law, speculation cannot supply the basis for a contention. And that is doubly true where the speculation is that the government will not fulfill its obligations; the United States Government and DOE are entitled to a presumption of regularity.99 Furthermore, the Majoritys conclusion applies an incorrect legal standard for funding projections. As the Commission has explained:

[petitioners] cannot insist that Applicants provide the impossible: absolutely certain predictions of future economic conditions. To be sure, safe operation of a nuclear plant requires adequate funding, but the potential safety impacts of a shortfall in funding are not so direct or immediate as the safety impacts of significant technical deficiencies. Generally speaking, then, the level of assurance the Commission finds it reasonable to require regarding a licensees ability to meet financial obligations is less than the extremely high assurance the Commission requires regarding the safety of reactor design, construction, and operation. The Commission will accept financial assurances based on plausible assumptions and forecasts, even though the possibility is not insignificant that things will turn out less favorably than expected.

Thus, the mere casting of doubt on some aspects of proposed funding plans is not by itself sufficient to defeat a finding of reasonable assurance.100 Waterkeeper offered no explanation of why LMEs expectation of future Congressional appropriations was not plausible. And the Majority failed to explain why Waterkeepers speculation provided anything more than the mere casting of doubt on LMEs expectation. Far more is required to demonstrate a genuine dispute. And by not applying the correct legal standard, the Majority committed legal error.

98 CPA, Part I at IX.

99 See LME Ans. to Pet. at 70 n.274 (citing United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926)).

100 N. Atl. Energy Serv. Corp. (Seabrook Station, Unit 1), CLI-99-6, 49 NRC 201, 221-22 (1999); see also Tr. at 171-72 (counsel for LME, Mr. Lighty, discussing this issue).

25 Perhaps more importantly, Waterkeepers speculation proved to be mistaken. In January 2026, Congress appropriated an additional $3.1 billion for the ARDP.101 In sum, the Majoritys unexplained acceptance of Waterkeepers speculation regarding the amount of funding that Congress ultimately will provide rests on multiple legal errors.

4.

The Majoritys Reformulation of Contention 3B Reflects a Legally Erroneous Interpretation of the Part 70 FQ Standard As framed by the Majority, the issue to be litigated at an evidentiary hearing is whether the CP should only be issued with permit conditions addressing financial qualifications because LME does not otherwise meet the section 70.23(a)(5) standard.102 But the inherent premise of the contention is legally erroneous. Even assuming, arguendo, that Waterkeeper had affirmatively demonstrated (with adequate support) a genuine dispute regarding the percentage of the Unreviewed Cost Estimate that Congress ultimately will cover; and even if, hypothetically, Waterkeeper proved at an evidentiary hearing that such percentage is 50% or less; the law would not require the imposition of a license condition as the only way a CP could be issued. The plain text of 10 C.F.R. § 70.23(a)(5) imposes no such requirement.103 Although the Majority notes that a license condition was imposed under somewhat similar circumstances in a different proceeding,104 one example does not a legal requirement make. And neither the Majority nor Waterkeeper articulated a reason why the same result would be required by law here. But that is not surprising, because no such legal requirement exists.105 101 Commerce, Justice, Science; Energy and Water Development; and Interior and Environment Appropriations Act, 2026, Pub. L. No. 119-74, § 311(a), 140 Stat. __, https://www.congress.gov/bill/119th-congress/house-bill/6938.

102 Long Mott, LBP-26-1, 103 NRC at __ (slip op. at 42) (emphasis added).

103 10 C.F.R. § 70.23(a)(5) (requiring only that the applicant appears to be financially qualified to engage in the proposed activities).

104 Long Mott, LBP-26-1, 103 NRC at __ (slip op. at 39).

105 See, e.g., RBD at 20 n.11 (even for applicants that do not identify funding commitments of 50% or more at the time of application, [t]he regulations do not mandate using license conditions.).

26 Because the text of Reformulated Contention 3B, itself, is blemished by legal error, the Majoritys decision to admit this reformulated contention should be reversed.

Because the Board erred in admitting both Contention 3A and 3B, and because Waterkeeper submitted no other admissible contentions, the Commission should reverse the Boards decision to grant the Petition.

IV.

THE COMMISSION SHOULD CLARIFY WHETHER THE PROXIMITY PRESUMPTION IS AVAILABLE IN NON-LLWR PROCEEDINGS To be granted a hearing, petitioners are required to demonstrate standing. They may do so by satisfying traditional standing requirements (i.e., identifying an imminent injury, fairly traceable to the proposed action, that is redressable in the proceeding).106 In some proceedings (primarily involving large light water reactors (LLWR)), petitioners may rely on the proximity presumption, which is a decades-old standing shortcut that originated at the AEC.107 In its Petition, Waterkeeper claimed standing based on the proximity presumption.

Commission precedent is silent on whether the presumption applies in advanced reactor proceedings. LME invited the Board to distinguish the prior precedent, primarily involving LLWRs, from the instant proceeding, which involves a non-LLWR; and it outlined the many legal and policy reasons that weighed against its application here.108 However, the Board interpreted the Commissions precedent as requiring broad application.109 Thus, the Board concluded that Waterkeeper was entitled to standing under the proximity presumption. But it did so reluctantly, adding that a reexamination of the proximity presumption and the wisdom of not 106 See, e.g., Exelon Generation Co., LLC (Peach Bottom Atomic Power Station, Units 2 & 3), CLI-05-26, 62 NRC 577, 579 (2005).

107 See, e.g., N. States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-107, 6 AEC 188, 190 (1973).

108 See LME Ans. to Pet. at 14-20.

109 See Long Mott, LBP-26-1, 103 NRC at __ (slip op. at 11-18).

27 applying it in non-LLWR proceedings is a matter appropriate for, and worthy of, careful Commission consideration.110 LME does not assert that the Board erred in its standing ruling.

But, as discussed below, the Commission has before it an opportunity to revisit, as a matter of sound policy, whether the proximity presumption should apply in non-LLWR proceedings.

A.

The Commission Has Inherent Supervisory Authority to Consider This Issue The Commission is responsible for all actions and policies of the NRC as well as the conduct of adjudicatory proceedings.111 In the exercise of this authority, the Commission will occasionally take review of an issue on [its] own motion, or sua sponte, as a vehicle to address an issue of wide implication, and to provide guidance to a licensing board.112 The Commission will also exercise this authority to address an issue [that] may well recur in future proceedings.113 These circumstances are present here.

First, this is an issue of wide implication. The NRC expects an influx of applications for advanced reactors114 and the Commissions exercise of authority will address an issue with implications beyond this single proceeding. Second, a Commission ruling on this issue would provide guidance to licensing boards on standing, which is an important issue[] of law or policy.115 Given these circumstances, this issue would benefit from early Commission 110 Id. at __ n.61 (slip op. at 15 n.61) (emphasis added).

111 Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), CLI-77-8, 5 NRC 503, 516 (1977).

112 Entergy Nuclear Vt., LLC (Vt. Yankee Nuclear Power Station), CLI-07-1, 65 NRC 1, 4-5 (2007) (citations omitted); Seabrook, CLI-77-8, 5 NRC at 516-17 (stating that the Commissions authority over adjudicatory proceedings empowers the Commission to step into a proceeding and provide guidance on important issues of law or policy.) (citation omitted).

113 Vt. Yankee, CLI-07-1, 65 NRC at 5.

114 Cf. GAO-23-105997, Nuclear Power: NRC Needs to Take Additional Actions to Prepare to License Advance Reactors (July 2023) (stating that the NRC recognizes the expected influx of advanced reactor applications).

115 Seabrook, CLI-77-8, 5 NRC at 516-17.

28 review.116 And the Commission has clarified its standing policy via order before.117 It has the opportunity to do so again here.

B.

Strong Factual and Policy Rationales Support the Use of Traditional Standing Analyses in Non-LLWR Proceedings The proximity presumption exists purely as a matter of Commission policy.118 The presumption originated as an efficiency measure, intended to acknowledge the relative similarity of LLWR plant designs, risk profiles, and EPZs across the operating fleet.119 But in the modern era, with expected applications for diverse technologies spanning a range of sizes and fuel types and source terms, a prescriptive one-size-fits-all approach is no longer apt.120 The only shared characteristic among non-LLWRs is their significant difference from LLWRs. This reality provides a compelling reason for the Commissions regulatory mechanisms, including its standing jurisprudence, to evolve and focus on risk-informed decision-making. Indeed, Congress mandated that the NRC shift away from prescriptive approaches toward a more flexible and adaptive framework,121 which the NRC is doing on substantive regulatory matters.122 This case presents the opportunity to extend this shift to procedural mechanics also, by deciding that the 116 N. Atl. Energy Serv. Corp. (Seabrook Station, Unit 1), CLI-98-18, 48 NRC 129, 130 (1998) (citing Adjudicatory Policy, CLI-98-12, 48 NRC 18).

117 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-91-13, 34 NRC 185, 187 (1991) (doing so to avoid uncertainty in future cases).

118 The Commission is not subject to the jurisdictional limitations placed upon federal courts by the case or controversy provision in Article III of the Constitution. Tex. Util. Generating Co. (Comanche Peak Steam Electric Station, Units 1 & 2), ALAB-714, 17 NRC 86, 93 (1983), citing N. States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-455, 7 NRC 41, 54 (1978), remanded on other grounds sub nom.

Minn. v. NRC, 602 F.2d 412 (D.C. Cir. 1979).

119 See generally LME Ans. to Pet. at 17-20.

120 LME Ans. to Pet. at 17.

121 See Nuclear Energy Innovation and Modernization Act, Pub. L. No. 115-439 § 103(a)(2), 132 Stat. 5565, 5571-72 (2019) (directing the NRC to develop and implement strategies for the increased use of risk-informed, performance-based licensing evaluation techniques and guidance for commercial advanced nuclear reactors);

Accelerating Deployment of Versatile, Advanced Nuclear for Clean Energy Act of 2024, Pub. L. No. 118-67,

§ 208(a)(1), 138 Stat. 1448, 1464 (2024) (directing the NRC to develop risk-informed and performance-based strategies and guidance to license and regulate micro-reactors.).

122 See, e.g., 10 C.F.R. § 50.160 (performance-based framework for determining PEP EPZ).

29 proximity presumption is incompatible with, and unavailable in, non-LLWR proceedings.

The proximity presumption is ill-suited for non-LLWRs for many reasons. For example, the 50-mile proximity radius corresponds roughly to the prescriptive 50-mile plume exposure pathway (PEP) emergency planning zone (EPZ) for LLWRs. But some non-LLWR facilities may have no offsite EPZ at all. And because non-LLWRs come in many shapes and sizes, it does not make sense to establish a prescriptive radiusat any distance. Limiting use of the proximity-based shortcut would be fully consistent with a recent Executive Order directing the NRC to [s]treamline the public hearing process.123 Declining to apply a presumption of standing, and instead requiring petitioners to demonstrate traditional standing (the same standard applied to every litigant in judicial proceedings across the United States every single day) would ensure efficient proceedings by focusing resources on participants asserting particularized harms, rather than vague geographic proximity.

C.

The Commission Should Accept the Boards Invitation to Re-Evaluate the Proximity Presumption The Board acknowledged the overall thrust of LMEs position: that a 50-mile proximity presumption is not well-suited to non-LLWRs.124 According to the Board, if PEP EPZs at or near the site boundary continue[] to gain agency approval then the apparent benchmark for the proximity presumption may well be substantially reduced if not totally eliminated.125 All of this weighs in favor of requiring petitioners in non-LLWR proceedings to show more than mere distance to a facility.126 In addition, the proximity presumption does not reflect recent changes in standing 123 Executive Order 14300, Ordering the Reform of the Nuclear Regulatory Commission, 90 Fed. Reg. 22,587, 22,589 (May 29, 2025).

124 Long Mott, LBP-26-1, 103 NRC at __ (slip op. at 8).

125 Id. at __ n.57 (slip op at 14 n.57).

126 Id. at __ n.63 (slip op at 16-17 n.63).

30 jurisprudence, which has become more demanding across the decades since the proximity presumption was first applied. The Supreme Court requires imminent harm for standing and has rejected standing theories, similar to the NRC presumption, that recognize speculative harm.127 Roughly fifteen years ago, the Commission reaffirmed its proximity presumption, brushing aside such concerns.128 But nuclear legal practitioners have noted various flaws in the Commissions analysis.129 The time is ripe for the Commission to seize this opportunity to align its standing requirements with modern jurisprudence, technological advances, and risk-informed principles by deciding that the proximity presumption does not apply in non-LLWR proceedings.130 V.

CONCLUSION For the reasons explained above, the Commission should REVERSE the Boards decision to admit Contention 3A, the Majoritys decision to admit Contention 3B, and the Boards decision to grant the Petition, and TERMINATE the proceeding.

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 17th day of February 2026 127 Summers v. Earth Island Inst., 555 U.S. 488, 496-501 (2009).

128 Calvert Cliffs 3 Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-09-20, 70 NRC 911 (2009).

129 See David A. Repka & Tyson R. Smith, Proximity, Presumptions, and Public Participation: Reforming Standing at the Nuclear Regulatory Commission, 62 ADMIN. L. REV. 583 (2010).

130 If so, then the Commission also should reverse the Boards conclusion that Waterkeeper demonstrated standing under the proximity presumption. Remand would not be necessary for a traditional standing evaluation because the Board already found Waterkeeper did not make the required showing. See Long Mott, LBP-26-1, 103 NRC at __ (slip op. at 4) (Petitioner asserted that, consistent with... traditional standing requirements, it had established representational standing.); id. at __ (slip op. at 11) (Waterkeepers Petition does not explain in any detail how, without the presumption, any of these individuals would have standing.).

DB3/ 205233327.5 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of:

LONG MOTT ENERGY, LLC (Long Mott Generating Station)

Docket No. 50-614-CP February 17, 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 NOTICE OF APPEAL OF LBP-26-1 AND BRIEF IN SUPPORT OF APPEAL OF LBP-26-1 were 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