ML26075E867
| ML26075E867 | |
| Person / Time | |
|---|---|
| Site: | 05000614 |
| Issue date: | 03/16/2026 |
| From: | Wolfe S Atomic Safety and Licensing Board Panel |
| To: | Long Mott Energy, San Antonio Bay Estuarine Waterkeeper |
| SECY RAS | |
| References | |
| RAS 57648, ASLBP 25-991-01-CP-BD01, 50-614-CP | |
| Download: ML26075E867 (0) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD PANEL Before Administrative Judges:
Stefan R. Wolfe, Chair Dr. David A. Smith Nicholas G. Trikouros In the Matter of LONG MOTT ENERGY, LLC (Long Mott Generating Station)
Docket No. 50-614-CP ASLBP No. 25-991-01-CP-BD01 March 16, 2026 MEMORANDUM AND ORDER (Establishing Schedule for Responses Associated with Applicants March 13, 2026 Motion Regarding Contention 3B)
On March 3, 2026, applicant Long Mott Energy, LLC (LME) submitted a notification indicating that LME intended to file a dispositive motion regarding intervenor San Antonio Bay Estuarine Waterkeepers (Waterkeeper) admitted Contention 3B in this proceeding.1 LME then filed a motion to dismiss Contention 3B as moot on March 13, 2026.2 This order establishes a schedule for party responses associated with LMEs March 13, 2026 motion regarding Contention 3B.3 1 Licensing Board Notification Regarding CPA Part I Supplement #1 (Mar. 3, 2026) at 1.
2 See [LMEs] Motion to Dismiss Contention 3B as Moot (Mar. 13, 2026).
3 In a February 20, 2026 filing, the NRC Staff indicated that pursuant to section 2.1202(b)(2), it had decided not to participate further as a party in this 10 C.F.R. Part 2, Subpart L simplified hearing. See NRC Staffs Response to the Atomic Safety and Licensing Boards Order of January 22, 2026 (Feb. 20, 2026) at 2. While the Licensing Board has concluded relative to LMEs March 13, 2026 motion regarding Contention 3B, as well as LMEs pending motion to dismiss Contention 3A, see [LMEs] Motion to Dismiss Contention 3A as Moot (Mar. 6, 2026),
that the particular financial qualifications matters raised do not warrant directing NRC Staff In that regard, the parties are hereby provided notice that the Licensing Board may convert LMEs March 13, 2026 motion to dismiss to a motion for summary disposition under 10 C.F.R. § 2.1205.4 If LME opposes such a conversion, it shall file a pleading providing the basis for that opposition on or before March 25, 2026.5 Thereafter, intervenor Waterkeeper shall file a response that includes a discussion concerning (1) whether it supports or opposes such a conversion and the basis for that position; and (2) the substance of the LME motion, as it participation, the Board will on an ongoing basis continue to assess the need for Staff involvement in this proceeding.
And in that regard, during the February 26, 2026 prehearing conference concerning three pending motions by intervenor Waterkeeper to admit new and/or amended contentions relating to several LME construction permit application supplements, the Staff appeared to suggest that, in addition to a Board determination that Staff participation would materially aid the Board, a Board ruling directing Staff participation under section 2.1202(b)(1)(ii) also would require a showing that the Staffs participation is necessary. See Tr. at 345 (Turk). This interpretation seemingly is based on the language in section 2.1202(b)(1)(ii) stating that if the presiding officer determines that the NRC staffs participation is necessary, the presiding officer shall issue an order identifying the issue(s) on which the staff is to participate as well as set forth the basis for the determination that the staff participation will materially aid in resolution of the issue(s). 10 C.F.R. § 2.1202(b)(1)(ii) (emphasis supplied). It is apparent, however, that an appropriate Board determination that the Staffs participation would materially aid the Board makes such participation necessary. See 2004 Part 2 Changes, 69 Fed. Reg. 2182, 2228 (Jan. 14, 2004) (indicating that section 2.1202(b) provides that the NRC Staff would be required to be a party... in a proceeding where the presiding officer determines that the resolution of any issue would be aided materially by the NRC staffs participation as a party.)
4 See Fed. R. Civ. P. 12(d) (indicating that [i]f on a motion [to dismiss] under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.) In this regard, it is well-established in agency caselaw that the Federal Rules and associated caselaw regarding summary judgment serve as guidelines for applying the agencys summary disposition provisions. See Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 297 (2010) (observing that NRC standards governing summary disposition are based upon those the federal courts apply to summary judgment motions under Fed. R. Civ. P. 56) 5 In this pleading, LME also may, in the alternative, seek to demonstrate why its motion meets the standards for summary disposition and provide a short and concise statement of material facts for which there is no genuine issue to be heard. See 10 C.F.R. § 2.1205(a); see also Fed.
R. Civ. P. 12(d) (directing that if a motion to dismiss is converted to a summary judgment motion
([a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion"); Pulsifer v. Westshore Christian Acad., 142 F.4th 859, 862 (6th Cir. 2025)
(concluding that district court conversion of Rule 12(b)(6) motion to Rule 56 summary disposition motion was appropriate when the court gave notice of conversion and reasonable opportunity to supplement the record and present all material pertinent to the motion.)
may be supplemented by the LME response permitted above. Waterkeepers response brief is due the latter of (a) twenty (20) days from LMEs March 13, 2026 motion; or (b) if LME files a brief in support of summary disposition (see supra note 5), fourteen (14) days from the date of such filing.
Any LME motion for leave to file a reply to Waterkeepers response (1) shall be filed in accordance with the Boards August 28, 2025 initial prehearing order;6 and (2) pursuant to 10 C.F.R. § 2.323(c), will only be granted if LME demonstrates compelling circumstances for such a reply.
Further, the Board requests that on or before March 27, 2026, LME and Waterkeeper provide a joint submission indicating their positions on whether oral argument would be helpful in adjudicating LMEs March 13, 2026 motion and the basis for their opinions. Additionally, in that submission LME and Waterkeeper should indicate which dates between April 13, 2026, and April 24, 2026, they are all available for an oral argument on LMEs motion to dismiss contention 3B.
The Board notes that it has reviewed the parties positions on LMEs pending motion to extend discovery. The Board intends to resolve the motion on or before March 20, 2026.
6 See Licensing Board Memorandum and Order (Initial Prehearing Order) (Aug. 28, 2025) at 4-5 (unpublished).
Lastly, the Board will not hold oral argument on March 23, 2026, but will maintain the availability for a telephonic status conference at 1:00 p.m. Eastern Time (ET) on that date to address any administrative matters that may arise. The phone number and passcode for the conference will be sent directly to the parties by email. If the parties determine that a status conference is not necessary, they should inform the Boards law clerk on or before 9:00 a.m.
ET, on March 23, 2026.
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD Stefan R. Wolfe, Chair ADMINISTRATIVE JUDGE Rockville, Maryland March 16, 2026
/RA/
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
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LONG MOTT ENERGY, LLC.
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Docket No. 50-614-CP
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(Long Mott Generating Station)
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CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing MEMORANDUM AND ORDER (Establishing Schedule for Responses Associated with Applicants March 13, 2026 Motion Regarding Contention 3B) have been served upon the following persons by Electronic Information Exchange.
U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Mail Stop: O-16B33 Washington, DC 20555-0001 E-mail: ocaamail.resource@nrc.gov U.S. Nuclear Regulatory Commission Office of the Secretary of the Commission Mail Stop: O-16B33 Washington, DC 20555-0001 E-mail: hearingdocket@nrc.gov Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Stefan R. Wolfe, Chair, Administrative Judge Nicholas G. Trikouros, Administrative Judge Dr. David A. Smith, Administrative Judge Whitlee Dean, Law Clerk Georgia Rock, Law Clerk Email: stefan.wolfe@nrc.gov nicholas.trikouros@nrc.gov david.smith@nrc.gov whitlee.dean@nrc.gov georgia.rock@nrc.gov U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-14A44 Washington, DC 20555-0001 Susan Vrahoretis, Esq.
David Roth, Esq.
Sherwin Turk, Esq.
Stacy Schumann, Team Leader Anne Fream, Paralegal Georgia Hampton, Paralegal Email: susan.vrahoretis@nrc.gov david.roth@nrc.gov sherwin.turk@nrc.gov stacy.schumann@nrc.gov anne.fream@nrc.gov georgiann.hampton@nrc.gov Counsel for San Antonio Bay Estuarine Waterkeeper Perales, Allmon, & Ice, P.C.
1206 San Antonio St.
Austin, Texas 78701 Marisa Perales, Esq.
Gweneth Lonergan, Lead Legal Asst.
Email: marisa@txenvirolaw.com gwyneth@txenvirolaw.com
Long Mott Energy, LLC., Docket No. 50-614-CP MEMORANDUM AND ORDER (Establishing Schedule for Responses Associated with Applicants March 13, 2026 Motion Regarding Contention 3B) 2 Counsel for Long Mott Energy, LLC.
Morgan, Lewis, & Bockius, LLP.
1111 Pennsylvania Ave., NW Washington, DC 20004 Ryan K. Lighty, Esq.
Alex Polonsky, Esq.
Email: ryan.lighty@morganlewis.com alex.polonsky@morganlewis.com Office of the Secretary of the Commission Dated at Kearneysville, WV, this 16th day of March 2026.
RUSSELL CHAZELL Digitally signed by RUSSELL CHAZELL Date: 2026.03.16 16:31:02 -04'00'