ML110060288

Comment (9) of Geoffrey H. Fettus and Thomas B. Cochran on Behalf of Natural Resources Defense Council (NRDC) on Draft Environmental Assessment

ML110060288
Person / Time
Site:	Erwin
Issue date:	12/22/2010
From:	Cochran T, Fettus G Natural Resources Defense Council
To:	Rulemaking, Directives, and Editing Branch
References
75FR63519 00009
Download: ML110060288 (9)

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Decemrber 22, 201 0 Chief, Rules, Announcements and Directive Branch Mail Stop: TWB-05-BolM U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001, Email: NucicarFuci. IraftEA(Thinic gov

Subject:

NSF-Erwin Facility; Docket No.70-143; License SMN-124 NRDC Comments on the Draft Environmental Assessment

Dear Sir or Madam:

'T&e NaUtual Resources Defense Council (NRDC) herein offers its comments on the Draft iEnvironmental Assessment ("Draft EA") for the proposed renewal of License No.

SNM~l24' for Nuclear Fuel Services, Inc. (hereinafter the "NFS Erwin Facility"). We have three objections related to this proposed license renewal; two objections are substantive and one is procedural:.

1) An Environmental Impact Statement (EIS) is required for the review of this license application. Reliance on anEA and a Finding of No Significant Impact (FONSI) is unlawful under the National Environmental Policy Act (NEPA) of 1969, 42 U.S.C. §4321.

2) Under no circumstances should the Nuclear Regulatory Commission (NRC) issýIc a license for an unprecedented 40 year period to this facility.

3) NRC procedures for considering this proposed license renewal are unfair, discriminate against adequate public participation in the review process and should be amended.

I.

An EIS is Required for the Review of This License Application.

NEPA requires that an agency prepare an EIS for any "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C). The Ninth Circuit clarified the meaning of this standard: "An EIS must be prepared if substantial questions are raised as to whether a project may cause significant degradation

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NRDC Comments Erwin Draft EA December 21, 2010 Page 2 of some human environmental factor. To trigger this requirementa plaintiff need not shwf-tlaat, signfficat'effdct§ -wil1inif fctioccurP;'but 'raising substantirI questions whether a project may have-stnfighcant efects su iffl i

'Oceadn dvocatesv.e U-S: Armyiv or'ps o f'E ng in eers ;, 4 02 F.d 84`6; 86 42-65 (t'h-C' 1 "201 05)(-inte' rnal q uo6tat ion s aid'"n6d mo dfi'Cfatlon ýýs, 6initted; eniphaii iniofgigii415.' Wher&e as here, the agency prepares ahn LA ifn th efi'st instance, the agency mustvpfepare an EIS "[i]f the EA establishes thatthe agency's action may have a significant effect upon the environment." NPCA v. Babbit, 241 F.3d 722, 730 (9"' Cir. 2001). Otherwise, "the agency must issue a Finding of No Significant Impact' (FONSI), accompanied by a convincing statement of reasons to explain why a project's impacts are insignificant." Id. (internal quotations and modifications omitted).

The Draft EA and the underlying Applicant's Environmental Report comprise an inadequate review of the environmental impacts and the NRC's FONSI is unconvincing for the following reasons.

A. Failure to Take a "Hard Look" and Consider Reasonable Alternatives NEPA directs that NRC take a "hard look" at the environmental impacts of its proposed"'action, or series of related actions comprising a 'pro'gram"' 6f action, and compxare thef."t a~ fl-rdn*

d'f reasonable dltelfnativesTf6r d*etinigith'*iaency's purpose and need for agency action that may avoid or mitigate environmental. harms or-risks

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p se~b ISpreferre'd-alternadtli'e.- W tonstiltutes a-hardIol{,c-annoi6tob'e, outhneiidwith rue iu 1aeast encompasses a-h&

m ghninvsntigano n into"ih environmenital inmpacts of an'agency's actionand a &aindidakfinWledgment of the risks that tlhos* isacts>*ntahl",-aqait Audubon Soc. v. Dept of tie NaVy, 422 F.3d 174, 185 (4th Cir. 2005).

The Draft EA does not consider all reasonable alternatives to the proposed action.

The Draft EA considers only the "Proposed Action" and the "No Action" alternatives.

Based on 1) the 2010 Nuclear Posture Review (NPR); 2) the President's national security policy related to his comprehensive strategy to secure nuclear material and prevent nuclear smuggling and terrorism as outlined at his 2010 National Security Summit and elsewhere; 3) the National Nuclear Security Administration's (NNSA's) objective of consolidating'weaponiisabI6 rmaterials at fewer'facilities and increase securit'y at the remaining facilities, NRC in an EIS must examine the alternative of consolidating the highly enriched uranium (HEU) related functions performed at the NSF Erwin Facility, including naval fuel fabrication, down blending HEU and HEU'scrap recovery, at the proposed new modern and highly secure Uranium Processing Facility. (UPF) adjacent to the Departmenr qf Ene g 's (DOE's) Higlly Eniched Uraiium Mateial EFa{ht (HEUMF) at the Y-12'Naftltal SecufiltyC,.Ciplq k atOakRidge, Tefnnessee. An EIS is required to develop, a-nod conimgai'e

.a1 reason'abe 'dternatives to., enable me hgovernment to select the alteirahv-e mat provides tne',bestmaterlt physical protect'n, v

conitr~ o and accounting (MPC&A)-6f HEIU.ELobatig'thefunctidns curirently perf6redf at the.NSF Erwin Facility at tli"eproidosed UPF8 would 'eIihmiate the nieed fori transp6rtng IvHEU from Y-12 to ErwvinjTennessee.

NRDC Comments Erwin Draft EA December 21, 2010 Page 3

....ntakingahaird look-at the envirgnrrntal impactsý of itsproposed:action;'-NEPAY requir~es thatthe, agency~scrutiniTe.allimpacts to.he human environment,.,evn if doingso is InV

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f crield potenialy1 comd ph"ate what lookso be a preordained decisiomr.

The EA exclides areas that can impact the quality of the human environment and that are minimally necessary to be covered in order to form the basis for an Adequate environmental review by the federal and state agencies and the public. These areas include:

1. Physical security;

2. Nuclear material control and accounting;,

3. Criticality safety controls and risks;

4. Probability of equipment faiiures;

5. Plant building stability;

6. Seismic risk analysis;

7. Safety culture,

8. Terrorism;

9. The potential to construct improvised explosive devices on site;

10. The history of license violations; 1'1I NRC othelr federal agency and state agency enforcement actions; and 12 Emergency plans, including response to fires and evacuation plans..

With reaird to terrorism and security. concerns about. H the DOE.s National -Nuclear.

Security Admuintir n NSA) ~addresses sabotage and terrorism as legitimnate.-potential' environmental iptacts to be discu§sed iran EIS., By contrast, the NRC seems to.be.

doing its best to aivoid longtime pre-'edent for incorporating these discussions and the'...

clear direction of federal vcourts.2. Proliferati2n and seciirityissues have been. apart of See, for example, the NNSA's "Supplemental Analysis, Disposition of Surplus Highly Enriched Uranium," DOE/EIS-0240-SA1, October 2007, found online at http://nepa.energy.gov/nepa documents/sa/EIS-0240-SA-I.pdf, where NNSA even addresses in an EIS Supplement sabotage and terrorism related to HEU blend down at the NFS Erwin Facility.

2 While we understand that some at the NRC are seeking wa~ys to distinguish or marginalize the views of the US. Court of Appeals for the 9h, Circuit, that Court made it clear that security and terrorism issues must be part of a meaningful NEPA review.

Specifically, the 9 th Circuit stated:

We find.it'difficult to reconcile the Commýnission..s conclusion that, as a.

.matter of law, tile possibility 61 a terrorist attfack on ai nufcleairi.lacihty,is

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to 15ottoim security review against,the sa the ii~at. Uider tlhe NRC s own a, S. trlat'o:the rule of reasonableeness, it is reeqredto m deiermni~tionhA that itr consistent iVith its"01istatents and procedures. Here, it appears as though tho NRC is attempting, as a matter

NRDC Comments Erwin Draft EA December 21, 2010 Page 4 National Environmental Policy Act ONEPA*)decisions.sice tlie b6glnnlnggo its appication. See, Scientists' Irtitute for Puic InfOrmation,

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, *81 F.2 10'7.9. (D.C.'Cifr. 1'973).iThleUnited: States C6uri of %mppeals posi and reqiredthe AEC epare a programmatic envi'onmenital' irinacf statement on the AEC's Liquid Metal Fast Breeder Reactor (LMFBR) Program. Nonproliferation and terrorism were addressed in the subsequent EIS for the program.

At the preliminary injunction hearing in the 1974 case, West Michigan Environmental Action Council v. AEC, the AEC offered to prepare a generic Programmatic EIS on plutonium recycle, which later came to be known as the Generic Environmental Statement on Mixed Oxide Fuel (GESMO), No. RM-50-L,(a document subsequently initiated by NRC as the successor to AEC for these niatters). In 1976, the NRC began extensive administrative proceedings to compile a record on whether or not it was wise to reprocess spent nuclear fuel and recycle the recovered plutonium. In preparing a Draft EIS the NRC attempted to narrow the scope of the proceeding as it has done with the NFS Erwin Draft EA. This position was challenged and in 1976 the NRC was required to supplement its GESMO Statement to cover issues related to protecting plutonium from theft, diversion, or sabotage., Shortly after President Jimmy Carter took office the GESMO proceedings were suspended pending-an evaluati6h-of the impact of President-Carter's decision to indeAiiely defer ploutioinire.cycleThe pi;oceedings were never.resumed but.the obligation to incorporate safegiuards recuity an d terrorism concerns into ua NEtA analysis remain.-

i "The IinIde-t pi~seitation of the'site,'s 'Baseline Data is also. parficularly egregious in lightof the eriois securit' dohcers presented by a;proposed license extension of this magnitude. For example, the following information should be presented in clear, concise fashion-some in a classified appendix-that allows the involved agencies and affected public the opportunityto comment in a meaningful fashion:

of policy, to insist on its preparedness and the seriousness with whichjit is responding to the post-September 1 Itlh terrorist threat, while concluding, as a matter of law, that all terrorist threats are "remote and highly speculative" for NEPA purposes.

San Luis Obispo Mothers for Peace v. NRC,'449 F.3d 1016, 1031 (9th Cir. 2006)

(footnote omitted). See also. 449 F..3d 1028,.where the Court held that the NRC's.

,categorical refusal.toconsider.the envirornental effects of.a t in a.

licensing~proceding:.was. unreasonable under NEPA...,

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,, See NRDC.v: NRC, 539 F.2&824,(2_`.Cir.1.976)fornfull-discussion.

4 See also, NRC's Final Generic Environmental Impact Statement on Handling and.

Storage of Spent Light Water-Power Reactor Fuel, NUREG-0575, Vol. 2 (Appendix J);

August 1979.

NRDC Comments Erwin Draft EA December 21, 2010 Page 5

.1. The anount of HEU used annually;,

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4. A sitA"mrinp inidicating the lcaction bhnd ideiitity iSf the btiildinj`o<si to

.5. Detailed meteorological'data, rg.,

Wind rose data aling ithe frequency of ivind speed and direction at appropriate elevations;

6. The location of effluent stacks on site, and the annual quantities of effluent from~each stack [Ithe data in the ER are limited to annual summaries for each of four years (Table 24) and 2007 data for emission points, which are rot located on any accompanying map (Tables 25A and 25B1;

7. The location of liquid discharge pipes and the annual releases from each

[The'mapsin the ER are not difficult to ddeipher];

8. The number and location of HEU material balance areas [the number of locations can be inferred from the Table 1A in the ER];

9. The frequency of inventories;

10. The history of HEU inventory differences for each material balance area;

1. The license requirements for nuclear material accounting and control,

-12. The history of license vJolations; S

13. The extent of on-sitecontamination beyohn d the areas currentiyb 6"eihg-li4.The`histor5_yo reea C,,&ldlM A reqtuirements 'beca-us'e~ of fa~llure to meet MC&A requirements; and*

15. A discussion of the implications of the high rate of alcohol abuse by agents responsible fdortansp0rtilbi nuclear weapons and. eapon-usable materials.

Moreover, the Safety Review and the Draft EA are inadequate in their analysis of off-site releases of uranium into the air and into groundwater. While there is acknowledgement that some cleanup is ongoing and that areas of the site are currently being decommissioned, there is no discussion of NRC's failure to adequately regulate these releases in the past; or any meaningful discussioh of why things might be different in future years. The EA contains no contours that set forth the on and off site ground contamination levels of U-238 and U-235. There is no discussion of whether the historical stack measurements are consistent or inconsistent with ground contamination measurements. To be precise, what, for example, are the total off-site releases of U-235 and U-238? Do the NRC; EPA or TDEC mIake adequate enviromnental measurements to distinguish HIEU releýised when NSF wa's priocessing ->98% enriclhed -HEU from more recent releases 'when NSF -was processing)*93 5% ehrichpepHEU ? Theia13ars t attempt to correlate stack emission data with ýgrou`ind icointamiitiifin daitai Tli e-reisO....-.

rational justification for not including on-site ground contamination data so that it can be c or el a ed it o f, s te ' at : 'T ese,.' nd m an y -o t h e q u e stio n s, sh o u ld '.b e--ln v e stlg ated q n a correlated with off-S e"ia'd

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Draft EIS rather than the cursory document at issue in these comments.

See, 17iNov 2010 Memo by Sandra D. B"uce DOE, 16-4o

NRDC Comments Erwin Draft EA December 21, 2010 Page 6 B'. Failure to Consýult with Relev-anft, anid"Afeeted Ag'enci'e's....

The NRC should be prepared to work Vitli othdr responsible fed&ral agencies in formulating thej"hard look analysis" described in detail above. See 40 CFR § 1502 (14)(c) ("An agency may not reject a reasonable alternative because it is not within the jurisdiction of the lead agency."). See also, NRDC v. Morton, 458 F.2d 827, 836 (DC.Cir. 1972) (The mere fact that an alternative requires legislative implementation does not automatically establish it as beyond the domain of what is required for discussion, particularly since NEPA was intended to provide a basis for consideration and choice by the decisionmakers in the legislative as well as the executive branch."). See also Muckleshoot Indian Tribe v. U.S. Forest.Service, 177 F.3d 800, 814 (9th Cir 1999)

(An agency's refusal to consider an alternative hat would require some action beyond that of its congressional authorization is counter to NEPA's intent to provide options for both agencies Congress.).

It is unclear if the Draft EA afforded relevant federal and State agencies (e.g.,

Department of Energy (DOE), the National Nuclear Security Administration, the Department of Homeland Security, the State Department, the Department of Defense, the U.S. Department of the Navy, the Environmental Protection Agency, the U.S. Army Corps of Engineers,'ihe U.S. Geological Suivey, the U.S. Fish a~nd Wildlife Service, and the Tennessee Department of Environmental-Conservation).meaningfuloppportunity to

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ý comment on the security issues land environm,1ental,alyses.

Most amounts to.the acceptance-of thisroposed hcense apphcation, the NRC ha's aiiijedto,:

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easn) consult (1) the.Navy on nucleair.fuel fabri tion rquwements forthe next 40 year;()

the State Department on'likel' developments with huclear security/nonprolif&rition objectives over the same forty year time-frame; and (3) the DOE and NNSA on the Administration's policy to. consolidate nuclear weapon-usable materials.

Indeed, pre-decisional inter-agency communication is a fundamental tenet of the law. Leading NEPA scholars describe the reason for this necessary communication and analysis:

NEPA requires that agencies evaluate proposed actions affecting environmental quality. This "look-before-you-leap" mandate allows better actions to be developed that will promote "productive harmony" between people and nature in the short and long-term and will avoid or otherwise mitigate environmental damage or ',other undesirable or unintended consequences." By requiring public and intergovernmental review before

,>,:!making, final.decisions,_-thee-NEPA.pr6cess also promotesthe NEPA

.obj~ectiye.t6.',fm rove and coordinate. V deral-plans, functions, programs ana~reso~urc~es.,*-,

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i'2,,vr See Environmental Policy and NEPA, Past Present andFTuturte, Ray Clark and-Lairy Canter, 1997 St. Lucie Press, and Chapter 5, Basic Purposes and Policies of the NEPA Regulations, K.S. Wiener, at 69 (citation in text to NEPA Section 101 omitted).

NRDC Comments Erwin Draft EA December 21, 2010 Page 7 The NRC's limited view of its consulting obligations with other federal. agencies that have a significantiniterest'in our HEU and nonprfealon pohcy plainlyruns counter to NEPA's admonition-to "'look-before-you-leap."

C.-Failure to Properly.State Purpose and Need for Facility It is well settled law that an agency may not cripple NEPA analysis of the reasonable programmatic alternatives available to policy-makers by arbitrarily reducing the options subjected to detailed analysis to a stark choice between implementing the agency's preferred action - in this instance relicensing the NFS Erwin Facility for the next 40 years - and "No Action.." Yet this is exactly what the NRC proposes to do. We strongly urge the agency toadopt a different cours&.

Should NRC proceed with this relicensing action, we strongly urge that the agency withdraw the current Draft EA and commence work on a Draft EIS with a broad, logical, and coherent statement of the national purposes to be served by simply relicensing the NFS Erwin Facility with no meaningful questions asked Indeed, the NRC,`afong with its f6deral brethren, must develop a range of reasonable programmatic alterna'tives for achieving the underlying national objectives set forth in '. statement of purpose'and need something etimrely lackirng in the curren tdocumit.

Thiýs *is niecesary ats'tiecurrnt Draft' EN'd~oes'not prowide

'"c lete discussisn orf a&cquate data jtaare-neesr* to, fOrim the bas foi an aequate enlronmenhtal teview by the federal and state agencdies and the pubhc1. 'Specifi-l caly, tohs dischgsln (and.

associated data) shouldulnclude the n*eed forthe faclty, whether the US Navy shouldbe plannin~g to iphse out the-ue of HEU to fuel naval propulsiof ireactors, and whether the facility'Kativities should be moved given that 'some 4,500 people reside within one mile of the site as well as agricultural and other industrial-activities within one mile.

II.

NRC Should Not Grant a 40 Year License Extension The prbposal to grant a 40 year license extension is unprecedented, unnecessary and unwarranted. As Far as we.are aware, no nuclear fuel cycle facility has been granted a 40 year extension previously. With respect to the management of i-EU, we find it not credible that the NRC can adequately foresee some of the potential environmental impacts associated with this facility beyond a nominal 10 years license extension period.

The NRC has demonstrated its inability to do'so in the past, otherwise the facility would not be as extensively contaminated as it is today. Indeed, With th& availability of apparent alternatives such as the propdsed UPFFacility at Oak Ridge, Tennessee, NRC'cannot foresee whether thieNFSErwin Fahlity will be reqrtiied forcurrent-purposes-for the next ten years, mcucl1lss forty years intothefutuie. Fmally,"th&eNRC-does not maintain complete regulatory oversight over all activities at the site and cannotpre"dictthe adequacy of such oversight 40. years into the future.-

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!3 psingiHApp icatioiircUfi III.

NRC Procedures.fo 'Consideriiing this Licenising A ltUnfar Discriminate-Against Adcqutie PubhcParticipaton i the ReVic"w Process and Should be-.Ainedede There is an artificial and,-.in our view,: unlawful separation of the-NRC's NEPA review from the agency's licensing process. Put simply, it is unfair and prejudicial to ask the public to intervene within ten, twenty, or at most thirty days of the application for a NRC license extension, and if a member of the public fails to do so functionally deny that person the option of intervening in the process in a meaningful fashion. Late filed contentions could be pursued, but the procedural hurdles set up by the agency are very high and the resources necessary for such a strategy are prohibitive for most every member of the public.

Quite simply, the public should be provided the opportunity to intervene in a licensing proceeding after the NRC has prepared a Draft EA or EIS on any proposed major licensing action and after other federal agencies have commented in its adequacy of the initial draft environmental review. The NRC process as it currently exists - near total reliance on an applicant's Environmental Report, followed by an agency NEPA process that is arbitrarily severed from what amounts to any meaningful licensing decisions - fails to satisfy the public participation and informed decision-making mandates of NEPA. The procedural requirements of NEPA are designed to benefit those who participiate;i---age-nc-y-d-ci-sibfii-aking processes and to relidir-eth-e-'h*-a,-n.y't-k -e

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a "hard.look'.at.-the impacts,,alternatives, mitigation measures, a nd otheraspects 6fa.

federalFdction at.the earliest stages of the decision process, i, recoghition that When. a, "decision.is, made without-he information that NEPA seeks, to put befire t decisign-maker, the harmnithat NEPA seeks to prevent occurs." See, Sierra Club v. Marsh, 872 F.2d 497, 500 (1 st Cir. 198 9) quotin Commonwealth of Massachusetts v. Watt, 716 F.2d 946 at 953 (1st Cir. 1983).

This is not what happens. Some members of the public may not be aware of the application for a license extension at the time it is made. Even if they were, they should not be required to intervene in the basis of the licensee's claims prior to review by appropriate federal agencies. Also, some relevant environmental and safety related data is not even released to the public at the time the ER is submitted to the NRC, but is withheld as so-called "Sensitive Unclassified Non-Safeguards Information," another onerous and costly procedure for the public to manage.

By contrast to well-established NEPA law, the NRC's procedure denies all parties (including the NRC, other federal agencies, the State, and the public) early review of the information that a detailed NEPA analysis would provide. The input from these sources should necessarily be part of the agency decision-making process. But the NRC's severing of the NEPA review from the licensing process ensures that comments on a Draft EA that call into question the Staff's decisions can be summarily dismissed unless they are accompanied by'late-filed contentions, which will in all likelihood be denied under the NRC's draconian standards in 10 C.F.R. Part 2.

NRDC Comments Erwin Draft EA December 21, 2010 Page 9

. Again, this is not how the NRC should proceed. Conducting NEPA analysis.at the earlist possible poinftis neessary toi met the requirement tha NEPA ahalysis must precede the decisiobn-making ocess, lst the agency unleash a$ "bueaucratic steam roller" aimed at approval, but without the publid participati`h "Yh` ifotn* d decisionmaking requirements ofNEPA." See, Davis v. Mineta, 302 F.3d 1104, 1115 (10th Cir. 2002). In short, the procedures.the NRC used for the present relicensing application fail to satisfy NEPA's purpose, which is to influence the decision making process "by focusing the [federal] agency's attention on the environmental consequences of a proposed project," so as to "ensure [] that important effects will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989).

If you have any questions, please do not hesitate to contact us at (202) 289-6868.

Thank you very much for your consideration of these matters.

Sincerely, Gedo f

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ThomasB CocfaihP:D'an SenioPr Programi

.SeiiScientst;iNiclear Program Natural*Resorcese'Defense Councl.Natural" Resources Defen's (Counci" 1200 New york'Ave.;NWSuiite ONewýo&Ave.,

uite 400 Washington, D.C. 20005-6166 Washington,.D.C..20005-6166 (202)289-6868 (202) 289-6868 gfettus (nrdc.org cpaine a nrdc.org t.;*

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