ML26077A394
| ML26077A394 | |
| Person / Time | |
|---|---|
| Site: | 05000614 |
| Issue date: | 03/18/2026 |
| From: | Lighty R, Polonsky A Long Mott Energy, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 57652, ASLBP 25-991-01-CP-BD01, 50-614-CP | |
| Download: ML26077A394 (0) | |
Text
1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
LONG MOTT ENERGY, LLC (Long Mott Generating Station)
Docket No. 50-614-CP March 18, 2026 LONG MOTT ENERGY, LLCS MOTION FOR LEAVE TO FILE A LIMITED REPLY I.
INTRODUCTION Pursuant to 10 C.F.R. § 2.323(a), Long Mott Energy, LLC (LME) files this motion for leave to file a reply to a limited portion of San Antonio Bay Estuarian Waterkeepers (Waterkeeper) answer (Answer) to LMEs motion to dismiss Contention 3A (Motion).1 In its Answer, Waterkeeper argues that the Motion should have been presented as a motion for summary disposition, rather than a motion to dismiss.2 But Waterkeeper communicated no objection to LMEs intended procedural vehicle during the parties consultations on the Motion.
Rather than seek to resolve this procedural issue during the consultation phasewhich may have avoided the need for further litigation on this pointWaterkeeper concealed its view, preferring instead to offer a gotcha argument in its Answer. If the consultation requirement in 10 C.F.R.
§ 2.323(b) is to serve any meaningful purpose, the parties must consult in good faith. Thus, fairness and necessity require that LME be provided an opportunity to respond to this line of argument.
1
[Waterkeepers] Answer to [LMEs] Motion to Dismiss Contention 3A as Moot (Mar. 16, 2026) (ML26075E909)
(Answer); [LMEs] Motion to Dismiss Contention 3A as Moot (Mar. 6, 2026) (ML26065A302) (Motion).
2 Answer at 1-3.
2 II.
BACKGROUND On March 3, 2026, LME notified the Atomic Safety and Licensing Board (Board) of its intent to file a motion to dismiss Contention 3A as moot.3 That notification also advised the Board that consultations between LME and Waterkeeper on that intended motion were underway, as required by 10 C.F.R. § 2.323(b).4 The consultation represented LMEs sincere effort to resolve the matter of Contention 3As mootness amicably. For example, LME shared details regarding the specific reasoning for its view that the contention should be dismissed as moot.5 LME genuinely believed that the mootness of Contention 3A would be sufficiently clear that the motion would not be controversial and could be submitted jointly. LME even provided to Waterkeeper an example from another recent proceeding in which the applicant and intervenor amicably filed a joint motion to dismiss an admitted contention as moot; and LME invited Waterkeeper to do the same here.6 In conferring on potential oral argument dates, as requested by the Board, LME provided the following explanation to Waterkeeper about the form of, and basis for, its intended motion:
As noted in my email yesterday, we intend to file motions to dismiss the contentions as moot (based on supervening changes to the application itself), rather than motions for summary disposition (which are post-discovery, pre-hearing rulings on the merits). Motions to dismiss are filed under 10 CFR 2.323 (see the Turkey Point example I sent yesterday). 10 C.F.R. 2.323(c) provides that answers to motions are due 10 days after service of the motion.7 3
[Board] Notification Regarding CPA Part V Supplement #1 (March 3, 2026) (ML26062A855) (emphasis added).
4 Id.
5 Email from R. Lighty to M. Perales (cc: S. Hanson, et al.) (Mar. 3, 2026, 4:14 PM ET) (forwarding LMEs Supplement # 1 to CPA Part V within a few hours of its submission to the NRC) (explaining LMEs plan to file a motion to dismiss because [t]his supplement materially modifies the text of the special circumstances discussion in the CPA. The old text that was challenged in Contention 3A no longer exists. Thus, there no longer is a live controversy related to the prior text. The mootness of Contention 3A does not impact Waterkeepers ability to challenge the new text, presented in the Supplement, via a new or amended contention if it chooses. But, there should be no doubt that the current Contention 3A has been superseded and is moot.).
6 Id. (providing a hyperlink to Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 & 4), Joint Unopposed Motion to Dismiss Reformulated Contention 1 as Moot [] (Apr. 4, 2024) (ML24095A314)).
7 Email from R. Lighty to S. Hanson (cc: M. Perales, et al.) (Mar. 4, 2026, 12:46 PM ET) (dismiss underlined in original; other emphasis added).
3 In addition to these detailed explanations, LME invited Waterkeeper to share its questions and offered to arrange a call to discuss the issue.8 In sum, LME did not simply send a perfunctory check the box consultation email, with no explanation, telling Waterkeeper that it planned to file a motion. LME made a good faith attempt to provide sufficient information to allow the parties to discuss the issues, look for common ground, and potentially narrow or eliminate any disputed mattersincluding as to the form of the motion.
On March 6, 2026, after three days of consultation, the sum total of Waterkeepers response was that You may reflect that we are opposed.9 Waterkeeper provided no explanation for its opposition. Nor did it raise any specific objections or concerns regarding the form of the motion.
LME then filed the Motionin the same form described to Waterkeeper during the consultation (i.e., a motion to dismiss)later that day. Ten days later,10 on March 16, 2026, Waterkeeper filed its Answer. Therein, Waterkeeper asserted (for the first time) that the Motion is not the proper procedural vehicle to seek dismissal of Contention 3A.11 Waterkeeper suggests that LME should have filed a motion for summary disposition instead.12 LME requests leave to file a reply to this portion of Waterkeepers Answer.13 8
E.g., Email from R. Lighty to S. Hanson (cc: M. Perales, et al.) (Mar. 5, 2026, 5:17 PM) (we remain open to having a call to discuss, if that would be helpful.)
9 Email from M. Perales to R. Lighty (Mar. 6, 2026, 1:59 PM ET).
10 See Licensing Board Memorandum and Order (Establishing Briefing Schedule for Motion to Dismiss Contention 3A) at 2 (Mar. 11, 2026) (ML26070A169) (unpublished).
11 Answer at 1; accord id. at 3.
12 Id. at 2-3.
13 Waterkeeper filed its Answer near midnight on March 16, 2026. Thus, LME received it on March 17, 2026. Under the Boards timing requirements, this motion was required to be filed the very next day, on March 18, 2026. See Licensing Board Memorandum and Order (Initial Prehearing Order) at 4 & n.15 (Aug. 28, 2025) (establishing the timeliness of reply pleadings as seven calendar days after service of the answer and requiring motions for leave to be filed three business days prior to that). When the Board did not issue an order, sua sponte, by close of business on March 18, 2026, seeking supplemental briefing on this issue (as it did regarding Contention 3B), LME opted to pursue this motion, made a sincere effort to contact Waterkeeper to resolve the issue raised herein, and offered its availability for further discussion. As requested by the Board, the NRC Staff was copied on that consultation.
LME held its filing until a few moments before the applicable deadline (11:59 PM ET on March 18, 2026), but received no acknowledgement or response from Waterkeeper. Thus, LMEs efforts to resolve this issue have been unsuccessful and Waterkeepers support or opposition to this request is unknown.
4 III.
DISCUSSION While replies to motions are not automatically prescribed in the NRCs rules of practice, presiding officers may grant leave to file a reply where compelling circumstances exist, such as the moving party demonstrates that it could not have reasonably anticipated the arguments to which it seeks leave to reply,14 or where necessity or fairness dictates.15 Both circumstances exist here.
Given the level of detail that LME provided to Waterkeeper during the consultations on the Motion, and the absence of any specific objection from Waterkeeper regarding the form of the motion, LME did not anticipate Waterkeepers challenge. Nor was it reasonable to expect such a challenge under these circumstances. The purpose of the consultation requirement in 10 C.F.R.
§ 2.323(b) is to narrow disputes, promote efficiency, and avoid unnecessary litigation.16 As the Board explained at the outset of this proceeding:
it is inconsistent with the dispute avoidance/resolution purposes of section 2.323(b) for counsel or the representative for the non-moving participant/party to fail to make a sincere effort to be available to consult regarding, or to fail to attempt in good faith to resolve, the factual and legal issues raised in the motion.17 Here, Waterkeeper made no attempt to resolve its legal objection to the form of the Motion.
Instead, Waterkeeper concealed that objection only to assert it for the first time in its Answer. That is contrary to both the letter and spirit of the rule and Commission policy.18 Had Waterkeeper raised this issue during consultations, LME may have modified the form of, or briefed the issue in, its Motion. Instead, Waterkeepers actions have drawn the Board and the parties into another layer 14 10 C.F.R. § 2.323(c).
15 U.S. Dept of Energy (High-Level Waste Repository), CLI-08-12, 67 NRC 386, 393 (2008).
16 See, e.g., Entergy Nuclear Vermont Yankee LLC (Vermont Yankee Nuclear Power Station), LBP-06-5, 63 NRC 116, 130 (2006).
17 Licensing Board Memorandum and Order (Initial Prehearing Order) at 4 n.13 (Aug. 28, 2025) (ML25240B507).
18 See Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-81-08, 13 NRC 452, 454 (1991) (stating that fairness to all parties involved in NRCs adjudicatory procedures requires that every participant fulfill the obligations imposed by and in accordance with applicable law and Commission regulations.).
5 of dispute and delay. Permitting such strategic silence during consultation, followed by a surprise procedural objection, undermines the consultation process and frustrates adjudicatory efficiency.
Necessity and fairness also support permitting LME to file a reply. The Commissions Statement of Policy on the Conduct of Adjudicatory Proceedings emphasizes the importance of ensuring a fair and thorough hearing process and establishing a full, fair, and adequate record.19 Allowing LME to brief this issue will ensure that the Board has a complete record on it. It also would be consistent with the Boards March 16, 2026, Order.20 Therein, the Board questioned the procedural form of a different motion. Recognizing the interests of fairness, and the need for an informed adjudicatory record, the Board requested supplemental briefing on that topic. The same considerations apply here. Allowing LME to file a limited reply will promote fairness, protect the integrity of the consultation process, and facilitate adjudication on a complete record.
IV.
CONCLUSION As established above, compelling circumstances exist to permit LME to file a reply to the procedural arguments presented in Waterkeepers Answer to the Motion. Accordingly, the Board should GRANT this motion for leave to do so.
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 18th day of March 2026 19 See Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 18-19 (1998)
(an informed adjudicatory record [] supports agency decision making.)
20 Licensing Board Memorandum and Order (Establishing Schedule for Responses Associated with Applicants March 13, 2026, Motion Regarding Contention 3B) at 2 n.5 (Mar. 16, 2026) (ML26075E867) (unpublished).
DB3/ 205248942.3 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
LONG MOTT ENERGY, LLC (Long Mott Generating Station)
Docket No. 50-614-CP March 18, 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 Motion for Leave to File a Limited Reply was served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned docket.
Signed (electronically) by Ryan K. Lighty RYAN K. LIGHTY, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 (202) 739-5274 ryan.lighty@morganlewis.com Counsel for Long Mott Energy, LLC