ML20136G456
| ML20136G456 | |
| Person / Time | |
|---|---|
| Site: | Claiborne |
| Issue date: | 03/13/1997 |
| From: | Bishop R, Silberg J NUCLEAR ENERGY INSTITUTE (FORMERLY NUCLEAR MGMT &, SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20136G386 | List: |
| References | |
| LBP-96-25, ML, NUDOCS 9703180043 | |
| Download: ML20136G456 (49) | |
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DOCKETED 4
USNRC UNITED STATES OF AMERICA N. E 13 P4 :16 NUCLEAR REGULATORY COMMISSION OFFICE OF SECRETARY DOCKET
& ERVICE Before the Commission l
)
In the Matter of
)
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Docket No. 70-30-ML LOUISIANA ENERGY SERVICES, L.P. )
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(Special Nuclear Material (Claiborne Enrichment Center)
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License) i
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NEI AMICUS BRIEF ON REVIEW OF LICENSING BOARD DECIS10.N LBP-96-25 NUCLEAR ENERGY INSTITUTE SHAW, PITTMAN, POTTS &
1776 I Street, N.W.
TROWBRIDGE hhington, D.C. 20006 2300 N Street, N.W.
202-/39-8139 Washington, D.C. 20037 (202) 663-8000 Robert W. Bishop Jay E. Silberg Vice President and General Counsel David R. Lewis Paul A. Gaukler Paul Gormley Counsel for Licensees March 13,1997 9703180043 970313 PDR ADOCK 07003070 C
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TABLE OF CONTENTS 1
1 Paste j
TABLE OF CONTENTS........................................................ i TAB LE OF AUTHORITIES.................................................... iii 1
INTRO DUCTION............................................................. 1 1
STATEMENT OF THE CASE.................................................. 3 A.
B ackground.................................................... 3 4
I B.
Contention J.4 - Need For The Claiborne Facility.............. 4 C.
Contention K - No-Action Alternative......................... 5 D.
Contention Q - Financial Qualifications........................ 6
SUMMARY
OF ARGUMENT.................................................. 9 A.
Need For The Facility......................................... 9 B.
No-Action Alternative........................................ 10 C.
Financial Qualifications....................................... 10 AR G UME NT.................................................................. 12 I.
The Board Set An Improper Standard Forjudging The Benefits Of The Facility............................................... 12 A.
NEPA Does Not Perndt The Board To Redefine.An Applicant's Purpose Or Need................................. 12 B.
The Board's Decision Improperly Restricted The Benefits Of CE C...................................................... 15 1
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l C.
The Board Imposed A Level Of Proof And Quantification FarIn Excess Of The Rule Of Reason Specified By NEPA..... 18 II.
The Board Erred In Rejecting The No-Action Discussion............... 21 III.
The Board Erroneously Concluded That LES Was Not Financially Qualified.................................................. 25 i
A.
The Board Failed To Appreciate That The NRC's Financial Qualification Requirements Are Flexible And Not Rigid, l
Dogmatic Rules Of Law....................................... 25 B.
The Boan! Erroneously Applied The 10 C.F.R. Part 50 Financial Qualification Requirements To LES................. 27 The Board Erroneously Interpreth The Financial Qualification C.
Requirements Of 10 C.F.R. Pan 50............................ 32 D.
LES Is Financially Qualified In Acconiance With The NRC's Regulations........................................... 3 6 CO NCLUSI ON.............................................................,,, 3 9 4224101/DOCIDC1 ik
TABLE OF AUTHORITIES Page CASES Anson v. Eastburn, 582 F. Supp.18 (S.D. Ind.1983)........................... 14 Britt v. Army Corps. of Eng'rs, 769 F.2d 84 (2d Cir.1985)..................... 19 Citizens Against Burlington, Inc. v. Busey,938 F.2d 190 (D.C. Cir.),
cert. denied, 502 U.S. 994 (1991)....................................... passim City of Grapevine v. DOT,17 F.3d 1502 (D.C. Cir.), cen. denied,115 S.Ct. 63 5 (1994)........................................................... 14 Environmental Defense Fund, Inc. v. Hoffman,566 F.2d 1060 (8th Cir, 1977)......................................................................24 Image of Greater San Antonio v. Brown, 570 F.2d 517 (5th Cir.1978).......... 23 Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827 (D.C.
Cir. 19 72)................................................................. 19 New England Coalition on Nuclear Pollution v. NRC,582 F.2d 87 (1st Cir. 1978)............................................................. passim Public Utilities Comm'n v. FERC, 900 F.2d 269 (D.C. Cir.1990).............. 19 Roosevelt Campobello Int'l Park Comm'n v. EPA,684 F.2d 1041 (1st Cir. 198 2)..........................................................
12, 16-17 Salmon River Concerned Citizens v. Robertson,32 F.3d 1346 (9th Cir.
1994)......................................................................19 South La. Enytl. Council, Inc. v. Sand, 629 F.2d 1005 (5th Cir.1980)........... 22 Suburban O' Hare Comm'n v. Dole,787 F.2d 186 (7th Cir.), cert denied, 479 U.S. 847 (1986)................................................ 19 Vermont Yankee Nuclear Power Corp. v. NRDC, Inc.,435 U.S. 519 (19 7 8)..................................................................... 17 iii
\\
\\
1 4
4 d
Page Warm Springs Dam Task Force v. Gribble,621 F.2d 1017 (9th Cir.
1980)......................................................................24 ADMINISTRATIVE DECISIONS j
j Louisiana Energy Services, L.P. (Claiborne Enrichment Center),
LBP.91-41, 34 N.R.C. 332 (1991)............................................ 4 Louisiana Energy Services, L.P. (Clairborne Emichment Center),
LBP-96-7, 43 N.R.C.142, aff'd, CLI-96-08, 44 N.R.C.107 (1996)............. 4 Louisiana Energy Services, L.P. (Clairborne Enrichment Center),
4 LBP-97-3, N.R.C.
(19 9 7)........................................... 4
~
Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI 78-1, 7 N.R.C.1, aff'd, New England Coalition on Nuclear Pollution v. N.R.C., 582 F.2d 87 (1st Cir.1978)............... passim i
l Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-89-20, 30 N.R.C. 231 (1989).................................... 27
+
REGULATIONS
]
10 C.F.R. Part 5 0......................................................... passim 10 C.F.R. $ 5 0.21 (c)........................................................... 3 0 4
10 C.F.R. $ 50.33 (f)....................................................... passim 10 C.F.R. $ 5 0.33 (f)(1)...................................................
7, 34-35 10 C.F.R. 5 5 0.3 3 (f) (2).......................................................... 7 10 C.F.R. $ 50.33 (f)(3)..................................................... passim 10 C.F.R. $ 50.33 (f)(3)(i)..................................................
7, 33 10 C.F.R. 5 50.33 (f)(3)(ii).................................................
7, 33 i
e IV
1 Page 10 C.F.R. 5 5 0.4 0 (b)........................................................... 29 1
10 C.F.R. $ 51.10 (a)........................................................... 2 4 10 C.F.R. S 51. 71 (d)........................................................... 16 10 C.F.R. 5 51.90............................................................. 16 l
10 C.F.R. $ 51, App. A 5 4...............................................
14, 18 10 C.F.R. S 51, App. C.....................................................
8, 32 10 C.F.R. S 50, App. C $ II.A.2............................................
8, 32 10 C.F.R. Fart 70..................................'....................... passim 10 C.F.R. $ 70.22 (a) (8)......................................................... 7 i
10 C.F.R. $ 70.23 (a) (5).....................................................6, 29 10 C.F.R. $ 72.22 (e)........................................................... 31 4 0 C.F.R. 5 15 00.4............................................................ 22 2
40 C.F.R. 5 15 02.13........................................................... 14 4
40 C.F.R. 5 1502.21........................................................... 22 A
40 C.F.R. $ 1502.23........................................................... 19 32 Fed. Reg. 4,055 (Mar. 1967)................................................. 2 8 33 Fed. Reg. 9,704 Ouly 4,1968)........................................ 25, 29, 31 46 Fed. Reg.18,026 (Mar. 23,1981)......................................... 21-22
.46 Fed. Reg. 41,786 (Aug.18,1981)............................................ 26 47 Fed. Reg.13,750 (Mar. 31,1982)............................................ 26 j
49 Fed. Reg. 35,747 (Sept.12,1984)............................................ 26 I
f V
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Page 56 Fed. Reg. 23,310 (May 21,1991).......................................
3, 6, 27 59 Fed. Reg. 37,724 Quly 25,1994)............................................. 15 61 Fed. Reg. 28,467 Gune 5,1996)............................................. 15 STATUTES 42 U.S.C.$ 2243............................................................... 3 MISCELLANEOUS DOE /EIA - 0436 (96), Nudear Power Generation and Fuel Cycle Report (199 6)............................................................. 2 0 Nudear Fuel Cyde and Price Report, Energy Resources Int'l.................. 20 NUREG-1491, Safety Evaluation Report for the Clairborne Enrichment Center, Homer, Louisiana, NRC,Jan. 1994................... 37 i
Hearings Before the Joint Committee on Atomic Energy, Licensing and Regulation of Nudear Reactors, 90th Cong.,1st Sess. 347 (1967)......... 29-30 i
Licensing Uranium Enrichment Plants: Oversight Hearing Before the Subcomm. on Energy and the Environment of the Comm'n on i
Interior and Insular Affain,101st Cong., 2d Sess.123 (1991)................ 28 V1
UNITED STATES OF AMERICA.
NUCLEAR REGULATORY COMMISSION Before The Commission
)
In the Matter of
)
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Docket No. 70-3070-ML LOUISIANis ENERGY SERVICES, L.P. )
)
(Special Nuclear Material (Claiborne Enrichment Center)
)
License)
)
NEI AMICUS BRIEF ON REVIEW OF LICENSING BOARD DECISION LBP-96-25 INTRODUCTION In CLI-97-3, the Nuclear Regulatory Commiuion (" Commission" or "NRC")
granted petitions for review filed by the NRC Staff and Louisiana Energy Services
("LES") of the Partial Initial Decision, LBP-96-25, 44 NRC _ (1996), issued by the Atomic Safety and Licensing Board ( "Boarti") in the above matter. The Nuclear En-ergy Institute ("NEI")2 aas filed a motion forleave to file an amicus briefin this mat-ter because the Board's hutial Initial Decision is based upon significant legal error and, if allowed to stand, could severely affect the interests of the nuclear energy industry.
E NEI is the organization responsible for establishing unified nuclear industry policy on matters affecting the nuclear energy industry, including regulatory aspects of generic opera-tional and technical issues. NEI's members include all utilities licensed to operate commer-cial nuclear power plants in the United States, nuclear plant designers, major architect / engineering firms, fuel fabrication facilities, materials licensees, and other organiza-tions and individuals involved in the nuclear energy industry.
i
i The Board's PartialInitial Decision contains serious ermrs of law both with re.
spect to the application of the National Environmental Policy Act ("NEPA") and the Commission's financial qualification requirements. The Board's mlings concerning the treatment in the final environmental impact statement ("FEIS" or "EIS") of the "need" for the Claiborne Enrichment Center (" CEC" or "Claiborne") and the FEIS' analysis of the "no-action alternative" are both erroneous and misguided. They are i
contrary to NEPA, NRC regulation and precedent, and judicial precedent. Similarly,
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the Board's ruling on the financial qualifications of LES to constmct and operate the Claiborne facility both misreads and misapplies the Comminion's financial qualifica-l tion requirements.
3 If left to stand, the Board's decision could establish damaging precedents that could 9.dversely impact other NRC licensing actions, beyond the LES proceeding which is the subject of this appeal. The Board's rulings are therefore highly impor-tant, not only for this first-of-a-kind enrichment facility licensing proceeding, but also for future NRC licensing proceedings involving other types of facilities as well.
The Board's decision also injures the financial interests of NEI's members.
The licendng of the Claiborne facility would add a significant additional competitor i
in the enrichment services market, introduce a new advanced and environmentally su-perior technology, potentially reduce reliance on foreign sources of enrichment serv-ices, and add to the diversity of domestic uranium enrichment supply technology. All of these factors are extremely important to NEI's member utilities, because they affect the utiliries' ability to obtain the most cost effective and secure nuclear fuel supply.
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i-Acconfingly, NEI respectfully requests that the Commission revene the erro-neous rulings of the Board's PartialInitial Decision.
STATEMENT OF THE CASE A.
Backgro.md LES seeks a license to build and operate the Claiborne facility, which would be the first privately-owned uranium enrichment plant employing advanced centrifuge technology in the United States. This facility will use a different technology that would require for less energy to produce the same Separative Work Units (SWUs).
FEIS at p. 2-1. The Claiborne facility would also add an additional competitor in the enrichment services market, promote diversity and thus security of the supply of en-richment services, and potentially reduce dependence on foreign sources. For all of these reasons, the facility is important to and supported by the nudear industry. See, eg, FEIS, Vol. 2 at 3-4 and 3-134 (favorable comments by the American Nudear Soci-ety and the Nudear Power Oversight Committee).
LES filed its application for a license to construct and operate the Claiborne en-richment facility in January 1991. The application was filed punuant to section 193 of the Atomic Energy Act,42 U.S.C. $ 2243, which had been enacted the previous year to simplify the licensing process for uranium enrichment facilities.
In May 1991, the Commhsion issued a notice of hearing which identified the regulatory standanis by which LES's application was to be judged. 56 Fed. Reg.
23,310 (May 21,1991). In October 1991, the Intervenor, Citizens Against Nuclear Trash (" CANT"), filed a petition to intervene. On December 19,1991, the Board 3
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granted CANT's petition and admitted nine contentions. Louisiana Energy Services, L.P. (Claiborne Enrichment Center), LBP-9141,34 NRC 332 (1991).
On April 26,1996, the Board issued its first Partial Initial. Decision, addressing j
three of the admitted contentions. Louisiana Energy Services, L.P. (Claiborne Enrich-ment Center), LBP-96 7,43 NRC 142, affirmed, CLI-96-08,44 NRC 107 (1996). The Board's Partial Initial Decision on three additional contentions - LBP-96-25, the sub-ject of the Commission's review here - was issued December 3,1996.E A third Partial l
Initial Decision - LBP-97-3,45 NRC (1997) - addressing two more contentions was issued on March 7,1997, and one contention remnim to be addressed..E j
LBP-96-25 addresses three contentions raised by CANT. The first two, con-tentions J.4 and K, raise issues under NEPA. The thini, Contention Q, concerns the j-financial qualifications of LES. The parties' position and the Board's decision with re-spect to each of these contentions is summarized below.
b.
Contention J.4 - Need For The Claibome Facility'.
l CANT's Contention J.4 asserts that the environmental analysis "does not ade-j quately describe or weigh the environmental, social, and economic impacts and costs j
of operating the CEC. Moreover the benefit-cost analysis fails to demonstrate that there is a need for the facility." LBP-96 25 at 4. CANT argued that no need had been E
That the licensing of the Claiborne facility-which was to have involved a simplified one step licensing process pursuant to an explicit Congressional mandate - has already taken over six years is of great concern to NEI and its members. It raises serious questions as to whether the NRC licensing process can be efficiently conducted.
E The Commission's February 13,1997 order, CLI-97-3, stated the Commission's expecta-tion that the Board would decide the remaining issues by May 1,1997.
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4 demonstrated because LES had not shown "that additional enriched uranium produc-tion capacity is needed." Id. at 29.
i LES opposed the contention on the basis that the economics of a proposed ac-tion is not within the scope of NEPA, nor is the economic wisdom of a project ger-mane to an environmental analysis. LBP-96-25 at 6,29. Altematively, both LES and the NRC Staff argued that the environmental analysis apprr wely evaluated the benefit or need for the Claibome facility. Id. at 29-30. Specifically, the environmental analysis identified that the Claiborne facility would provide an additional market competitor in the United States, use a new environmentally benign technology, and 4
potentially reduce reliance on foreign enrichment services. Id. at 40-41.
The Board identified the issue raised by Contention J.4 as "[w] hat, if any, con-i sideration must be given to the need for the facility in fulfilling NEPA responsibili-ties." LBP-96-25 at 6. The Board ultimately decided that LES was required to demonstrate need by quantifying a significant effect on price competition in the en-q richment services market. Id. at 83, 91. Based on that interpretation, the Board con-cluded that the environmental analysis does not accurately represent the actual benefit of the CEC, and that the discussion of need is inadequate. Id. at 91.
i C.
Contention K - No-Action Alternative CANT's Contention K asserts that the environmental analysis for the CEC "does not contain an adequate discussion of alternatives to the proposed action."
LBP-9625 at 6. CANT advocated that the environmental analysis is deficient because it does not adequately discuss the no-action alternative Id at 7 B th th NRC S ff o
e ta i
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i and LES pointed out, however, that the no-action alternative is the converse of not proceeding with the project and therefore adequately evaluated in 'the FEIS. I_d. at 96.
The Board concluded that the FEIS was nevertheless insufficient because the I
discussion of no-action relied upon and cross referenced the environmental analyris in otherportions of the document. LBP-96-25 at 98. In addition, the Board indic:ted that the impacts of depleted uranium tails that might be produced by foreign produc-en should be considered avoided costs of the no-action alternative, because the NRC's environmencal regulations do not apply to such foreign environmental effects. Id. at
- 99. Finally, the Board held that the FEIS may not include the benefits of increased employrr ent caused by the new facility. Id. at 106.
D.
Contention 0 - Financial Qualifications CANT's Contention Q asserts that "LES has not demonstrated that it is finan-cially qualified to build and operate the CEC." LBP 96-25 at 107. In its notice of hear-ing (56 Fed. Reg. 23,310), the Commission instructed the Board to determine whether LES's application satisfied (among other standards) the requirements of 10 C.F.R. S 70.23, which prescribes financial qualification requirements for license applications un-der 10 C.F.R. Part 70 as follows:
Where the nature of the proposed activities is such as to require consideration by the Commission, that the appli-cant appean to be financially qualified to engage in the proposed activities in accordance with the regulations in this part.
10 C.F.R. S 70.23(a)(5) (emphasis added).E E
With respect to the information to be provided in the application, the regulations in 10 Footnote continued on next page 6
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CANT argued to the Board that the financial qualifications showing required
. by 10 C.F.R. 5 70.23(a)(5) is the same as that required under the more detailed finan-cial qualification provisions of 10 C.F.R. Part 50. The provisions of 10 C.F.R. Pan 50 -
require for a construction permit application that:
the applicant shall submit information that demonstrates that the applicant possesses or has reasonable assurance of obtaining the funds necessary to cover estimated con.
struction costs and related fuel cycle costs. The applicant shall submit estimates of the total construction costs of -
the facility and related fuel cycle costs, and shall indicate the source (s) of funds to cover these costs.
l 10 C.F.R. $ 50.33(f)(1) (emphasis =AAaA). Similar financial qualification mquirements are imposed for non-electric utility applicants under 10 C.F.R. Pan 50 for the issuance of an operating license for a commercial nuclear plant. 10 C.F.R. $ 50.33(f)(2).
In addition, the financial qualificaricn provisions of 10 C.F.R. Part 50, unlike those of 10 C.F.R. Part 70, require that a newly formed entity applying for a Part 50 license provide information showing "the legal and financial relationships it has or proposes to have with its stockholders or owners" as well as their " financial ability to meet any contractual obligation to the entity which they have incurred or proposed to incur." 10 C.F.R. S 50.33(f)(3)(i)-(ii). Finally, Appendix C to 10 C.F.R. Part 50 "A
Footnote continued from previous page C.F.R. Part 70 provide as follows:
NOTE: Where the nature of the proposed activities is such as to re-quire consideration of the applicant's financial qualifications to en-gage in the proposed activities in accordance with the regulations in this chapter, the Commission may request the applicant to submit information with respect to his financial qualifications.
10 C.F.R. $ 70.22(a)(8) Note.
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Guide for the Financial Data and Related Information Required to Establish Financial Qualifications for Facility Constmction Pennits" - sets out guidance for certain - but not all-license applicants for constmetion permits under 10 C.F.R. Part 50 of the
" general kinds of financial data and other related information that will demonstrate the financial qualification of the applicant to carry out the activities for which the per-mit is sought." 10 C.F.R. $ 50, App. C ("GeneralInformation"). Appendix C ex-pressly states, however, that "[t]he kind and depth of information described in this guide is not intended to be a rigid and absolute requirement." Id.
CANT argued that the financial qualification provisions of 10 C.F.R. Part 50 require an " actual commitment or contract" if funds are to be generated from outside sources.E According to CANT, such a commitment is expressly required by 10 C.F.R. $ 50, App. C $ II.A.2 for newly formed entities that rely upon external sources of funding. CANT Proposed Form Of Decision at 70-71.
Contrary to CANT's position, both LES and the NRC Staff argued that the applicable regulatory standard for financial qualifications was 10 C.F.R. $ 70.23(a)(5) and that the more detailed financial qualifications provisions of 10 C.F.R. Part 50 and the associated Appendix C at most could serve as guidance on the type of information that would be relevant for determining financial qualifications. Moreover, both the NRC Staff and LES argued - relying on Commission precedent - that the NRC's fi-nancial qualification requirements do not require an actual contractual commitment E
CANT's Proposed Form Of Decision on Contentions B, J.3, J.4, J.9, K and Q at 70 (August 1,1995).
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for outside funds, but rather a reasonable plan by which to obtain outsida financing.
This LES had done.E The Boad adopted CANT's arguments and ruled that the more detailed finan-cial qualification provisions of 10 C.F.R. Part 50 were fully applicable to license appli-cations under 10 C.F.R. Part 70. LBP-%25 at 147-58. Relying principally on the l
provisions fo.ind in section II to Appendix C of 10 C.F.R. Part 50, the Boad held that newly formed entities, such as LES, were required to show binding, legally enforceable commitments for outside sources of funds relied upon to finance the project. Q at 157. Since LES had not done this, the Board ruled that LES had failed to demonstrate its financial qualifications. & at 170 72.
SUMMARY
OF ARGUMENT l
l A.
Need Fcr The Facility The Boad incorrectly imposed on LES and the NRC Staff an obligation to quantitatively prove that the Claiborne facility will have a specific effect on price com-petition. This was clear error for three reasons. First, the Board acted contrary to es-tablished NEPA law by improperly redefining LES's purpose and requiring a l
demonstration of benefits (quantifiable proof of a price reduction in uranium enrich-ment services) not advanced by the applicant. Second, the Boad acted contrary to NEPA and NRC regulations by ignoring the imponant benefits of the Claiborne fa-cility actually advanced by LES and set fonh in the record. Specifically, the Board did not consider that the facility would provide an additional market competitor in the United States; that it would be the only domestic facility using a new, environmentally-benign technology; and that it may reduce reliance on foreign E
LES's plan for financing the facility is discussed infra.
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enrichment services. Third, the level of proof and quantification of benefits de- '
manded by the Board far exceeded the rule of reason specified by NEPA. In this re-gard, even assuming evidence of a price reduction was required, LES introduced testimony from one on the world's foremost experts on uranium enrichment services l
that price projections would be about $2-3 per SWU higher without the Claiborne fa-cility, which translates into hundreds of millions of dollars in savings over the life of 1
I the facility for the operators of U.S. nuclear plants and their customers.
B.
No-Action Alternative 1
When it criticized the FEIS discussion of the "no-action" alternative, the Board erred in several respects. First, the Board rul'ed that the FEIS could not discuss the environmental impacts of the no-action alternative by cross-referencing the FEIS' comprehensive treatment of the environmentalimpacts of the proposed action. How-ever, the regulations implementing NEPA do not require the NRC to repetitively set forth the same information in two portions of the FEIS. Second, the Board disap-proved of the NRC Staff's consideration of the secondary benefits of the proposal.
However, NEPA clearly permits agencies to consider these types of benefits in their environmental analyses. Finally, the Board misapplied the NRC's regulations with regard to impacts on foreign countries, so that a domestic project would always be disfavored.
C.
Financial Oualifications The Board erred in applying the guidance of Appendix C of 10 C.F.R. Part 50 concerning the financial qualifications of newly fonned entities applying for certain categories of 10 C.F.R. Part 50 construction permits as a rigid, dogmatic rule applica-ble to totally unrelated licensing actions tuder 10 C.F.R. Part 70. The NRC's 10 s
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financial qualification requirements are flexible and not rigid, dogmatic rules of law as applied by the Board here. Funher, the Commiaion did not, sub silentio, incorpo-rate and make applicable to 10 C.F.R. Part 70 license applicants the more stringent fi-nancial qualification requirements of 10 C.F.R. Part 50, as claimed by the Board. Both the language and the history of the financial qualification provisions of 10 C.F.R.
j Parts 50 and 70, as well as Congress' mandate to proceed under Part 70, show that the Boaal erred in applying the financial qualification requirements of 10 C.F.R. Part 50 to LES here.
j Moreover, even assuming the financial qualification provisions of 10 C.F.R. Part 50, including Appendix C, fully apply to 10 C.F.R. Part 70 license applicants, such as LES, the Board erroneously interpreted those provisions to require newly formed entities to demonstrate existing, legally enforceable commitments for external sources of funding. To the contrary, the financial qualification provisions of 10 C.F.R. Part 50 expressly allow a new entity to provide the NRC with the " financial relationship" it " proposes" to have with its owners and the ability of the owners to meet the obligations to the new entity that are " proposed." Further, the Commision has ruled that the requirement for 10 C.F.R. Part 50 applicants to demonstrate reason-able assurance of obtaining the funds necessary for constructing a facility does not re-quire a showing of "near certainty" (as in effect held by the Board), but only that an applicant has a " reasonable financing plan" for obtaining the funds. The NRC staff
- concluded after its review that LES has provided such a plan by which it proposes to finance the Claiborne facility.
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9 ARGUMENT I.
The Board Set An Improper Standard Forjudging The Benefits Of The Facility Under the guise of examining the benefits of the Claiborne facility under NEPA, the Boad incorrectly imposed on LES and the NRC Staff an obligation to prove quantitatively that the Claiborne facility will have a specific effect on price com-petition. This was clear error for three reasons. First, the Board acted contrary to es-tablished NEPA Nw by improperly redefining LES's purpose and requiring a demonstration of benefits not advanced by the applicant. Second, the Board acted contrary to NEPA and the NRC regulations by ignoring the imponant benefits of the Claiborne facility actually advanced. Third, the level of proof and quantification of benefits hmandM by the Board far exceeded the rule of reason specified by NEPA.
A.
NEPA Does Not Permit The Board To Redefine An Applicant's Purpose Or Need Rather than addressing the benefits advanced by LES and incorporated in the FEIS, the Board proceeded to redefine and analyze the benefits of the Claiborne facil-ity in terms of quantifiable price reduction. LBP-%25 at 83-84. Since the concept of a quantifiable price reduction was the Board's own construct, and not a benefit ad-vanced by any pany,E he Board (not surprisingly) found little support in the record.
t Concluding that the FEIS was inadequate on this basis, however, was clear error, be-cause the Board lacked any authority to redefine LES' purpose and need in the first E
Part of the benefit advanced by LES for the Claiborne facility is that is could provide an additional market competitor in the United States. FEIS at p.1-5. The benefit is that LES can provide an alternative, domestic supply at competitive prices (see LES Erh.10 at A 2),
and not necessarily that substantially reduced prices will result. As far as NEI can discern, LES has never defined its purpose or need in terms of substantially reduced prices.
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place. Where a private project is the subject of an EIS, an agency should not substitute f
its concept of need for that of the applicant.
As an initial matter, an agency has different obligations in addressing the bene-e
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fits of a proposal from a private applicant than one of its own projects. See, eg, Roo.
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sevelt Campobello Int'l Park Com'n v. EPA,684 F. 2d 1041,1046-47 (1st Cir.1982).
1 In Roosevelt Campobello, the Environmental Protection Agency (" EPA") accepted an
'l applicant's assertion that, for economic reasons, the refinery for which it sought ap-proval to construct must be located at a port with deep water. Il at 1047. In its as-sessment of alternative sites for the project, " EPA's choice of alternative sites was focused by the primary objectives of the permit applicant," a private company. Il Based on the applicant's view that economic reasons required the facility to be at a l
deep water pon, EPA studied only those sites that had such ports. Neither the agency, nor the coun, intruded into this basic business decision. Id.
Similarly, in Citizens Against Burlington, Inc. v. Busey, 938 F. 2d 190 (D.C.
Cir.), cert. denied, 502 U.S. 994 (1991), the United States Court of Appeals for the Dis-trict of Columbia Circuit found that while Congress expected agencies to consider an applicant's wants when fonnulating the goals of the proposed action, " Congress did not expect agencies to determine for the applicant what the goals of the applicant's proposal should be." 938 F.2d at 199 (citations omitted). "When an agency is asked to sanction a specific plan..., the agency should take into account the needs and goals of the parties involved in the application." If at 196 (citations omitted). In that case, i
the coun emphasized that the FAA should not second guess the business choices made by an applicant when it decided to leave one city for another. The court stated that "the agency has neither the expenise nor the proper incentive stmeture" to make such 13
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an inquiry. If at 197 n.6. The coun funher noted that "while Congress clearly i
wated NEPA to extend federal agencies' range of vision to environmental concems, 4
it did not, so far as we can tell, aim at agencies' acquiring the skills of successful entre-a preneun. NEPA is supposed to make agencies more sensitive - but only, by defini-
- tion, to matten environmental." Id.
n In another recent case, the same coun held that where an agency is not the sponsor of a proposed action, the agency "may acconi substantial weight to the prefer-ences of the applicant and/or sponsorin the siting and design of the project." City of
)
i 1
Grapevine v. DOT,17 F. 3d 1502,1506 (D.C. Cir.) (Ginsburg,J.), cen. denied,115 S. Ct. 635 (1994) quoting Citizens Against Burlington, Inc., supra. The coun again quoted from Citizens Against Burlington: "[I)n formulating the EIS requirement, the Congress did not expect agencies to determine for the applicant vahat the goals of the applicant's proposal should be." City of Grapevine,17 F. 3d at 1506.
At least one coun has addressed the issue squarely and has found that NEPA does not require an agency to conduct an independent investigation into the need for a project proposed by a private applicant.- Anson v. Eastburn,582 F. Supp.18, 22 (S.D.
Ind.1983). The plaintiffs challenged the U.S. Army Corps of Engineers reliance on projections of demand furnished them by a private corporation applying for a permit.
E at 21. The court first noted that no provision of the statute requires an independ-ent evaluation by the approving agency of the need for a project. & It then referred to the portion of the Council on Environmental Quality ("CEQ") regulations provid-ing that the FEIS "shall briefly specify the underlying purpose and need" for the pro-ject. 40 C.F.R. $ 1502.13. Similar language in NRC guidelines provide for a statement of need in an EIS.10 C.F.R. Pan 51, Appendix A $ 4. The court stated that this 14
i i
I requirement "cannot be interpreted as requiring that the agency make a de novo deter-mination of need, but only that the agency include such a statement of purpose and.
need so as to put into context what the EIS is addressing " 582 F. Supp. at 22.
l These cases indicate that the NRC should adopt LES's statement of need.E l
This is a particularly eible construction of NEPA's requirements when, as here, a private applicant ha; enluated economic conditions and proposes to enter the market-l place..NEPA does not require a government agency to second guess such business de-cisions. Accordingly, the Board should not have tried to redefine the parpose of the Claiborne facility. LES wishes to construct the facility based on its analysis that the facility will be competitive in the enrichment services market. The Board's rejection i
of this benefit and its attempt to require LES to demonstrate that the facility will re-sult in lower prices for enrichment services is erroneous under NEPA and should be i
revened.
B.
The Board's Decision Improperly Restricted The Benefits Of CEC In the EIS for the Claiborne facility, the NRC Staff defined the purpose and need for the facility in terms of several factors. First, the facility would provide an ad-ditional market competitorin the United States. LBP-96-25 at 41. Second, the Clai-borne facility would be the only uranium enrichment facility in the country using gas E
It would be consistent with other positions the NRC has taken to refrain from deter-mining the economic viability of a proposed action. For example, in its Preamble to the Fi-nal Rule on Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, the NRC rejected an approach that would have required it "to consider the need for generat-ing capacity and utility economics as part ofits environmental analysis." 61 Fed. Reg. 28,467, 28,471 Gune 5,1996). In an earlier Federal Register notice, NRC recognized that its rejection of this approach is consistent with the trend of current NEPA case law which allows an agency to consider an applicant's wants. 59 Fed. Reg. 37,724,37,726 Quly 25,1994).
l 15 I
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)
centrifuge technology, an environmentally benign technology that uses fifty times less electricity to operate than existing domestic facilities. & at 40,42. Furthermore, LES believes (as does NEI and its memben) that the facility will promote divenity and se-
<i L
curity of supply at reasonable prices and may reduce the reliance of domestic reacton on foreign enrichment services. E at 49,73. NEI believes that these are very impor-tant benefits for the nuclear industry that would be achieved by the Claiborne facility.
The Board ignored these various benefits and instead insisted on a quantified demonstation of economic price effect.!! The benefits of a proposed action in an EIS (i.e. the "need" in the Board's parlance), however, are not limited to economics. In-deed, the NRC's regulations provide that an EIS will consider "the environmental,-
economic, technical and other benefits of the proposed action." 10 C.F.R. $ 51.71(d) and 10 C.F.R. $51.90. Nor are the economic benefits limited to the quantitative price l
effects to which the Board limited its consideration.
1
)
In a case not unlike the LES permit application, a private company applied to l
EPA for a National Pollutant Discharge Elimination System permit for the constme-tion and operation of an oil refinery and deepwater terminal in Maine. Roosevelt Campobello Int'l Park, supra,684 F. 2d at 1046. In rejecting a challenge to the EIS for the project, the Court explicitly accepted benefits beyond the quantitative pnce effect demanded by the Board for CEC. The court noted that encouraging domestic refin-ing capacity was consistent with national security policy. & In addition, permitting the refinery would keep jobs and investments in the United States. & Finally, unlike fl As discussed supra, the Board not only failed to address the non-economic benefits, but mischaracterized the benefit that it did consider.
16
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other refineries, the project was designed to facilitate compliance with new environ-mental standards. Id.
Like the oil refinery in Roosevelt Campobello, the CEC is consistent with na-x tional security policy in that it will increase domestic enrichment capacity and thus re-duce reliance on foreign enrichment services;E it will keep jobs and investment in the l
United States; and because of its improved technology, it will have a more benign en-vironmentalimpact than the enrichment facilities currently operating in the United States. Furthermore, the NRC has found in the past that reduced reliance on foreign fuel was properly evaluated as a benefit in an EIS for a nuclear reactor. New England Coalition on Nuclear Pollution v. NRC,582 F. 2d 87, 97 (1st Cir.1978).
Finally, in the FEIS the NRC Staff noted the benefit of a more benign environ-mentalimpact than existing domestic facilities. LBP-96-25 at 40. Specifically, the CEC will use fifty times less electricity per SWU than other domestic enrichment fa-i cilities. Id. at d. In the context of an environmental review of a proposed federal ac-tion, it is difficult to understand why the Board did not address this benefit of the CEC.
With regard to the national security benefit, the United States Supreme Court has noted that the primary purpose of the NRC in a licensing context is national security, public health, and safety. Vermont Yankee Nuclear Power Corp. v. NRDC, Inc.,435 U.S. 519,550 (1978). Because the nation's energy supplyis a vital component of national security, it was entirely appropriate that the NRC Staff considered benefits such as decreased reliance on for-eign enrichment services.
17
4 C.
The Board Imposed A Level Of Proof And Quantification FarIn Excess Of The Rule Of Reason Specified By NEPA Even if the NRC were to choose to look beyond LES's stated need, the infor-d mation provided by LES and the NRC Staff would suffice to satisfy NEPA require-ments. The NRC's regulations merely require an EIS to "briefly describe and specify the purpose of[and] need for the proposed activity." 10 C.F.R. Pan 51, App. A $ 4.
4 Funher, NEPA is subject to a rule of reason and therefore requires at most a reason-able discussion of the benefits of a proposed action.
The burden of proof in an NRC adjudicatory proceeding does not increase or elevate NEPA's requirements. The burden that might be assigned to an applicant pur-suant to 10 C.F.R. $ 2.732 merely requires a showing of compliance with NEPA's standants. Thus, where NEPA requires a brief discussion satisfying the rule of reason, an applicant's burden is to provide such a discussion and not to attempt to establish the cenainty of economic predictions.
i The Board did not apply a reasonableness standard, but instead demanded abso-lute and quantifiable proof of price reduction. In this regani, the Board held that the NRC regulations require an applicant to " establish the need for the facility" (LBP-96-25 at 32, n.5) and to quantify the effect of price competition to the fullest ex-tent practicable. Id. at 83.
The Board's demand for cenainty contravenes NEPA's rule of reason. The
" rule of reason guides every aspect of [the agency's) approach" to preparing the EIS.
Sg, eg, Citizens Against Burlington, supra,938 F.2d at 201. The Act does not re-quire a " crystal ball" inquiry, but merely requires an agency to make a good faith 18
i 1
5 A
effon to evaluate the proposed action. See, g, Natural Resources Defense Council, Inc. v. Morton, 458 F. 2d 827, 837 (D.C. Cir.1972).
Pursuant to the rule of reason, the objective is not the monetary quantification of impacts and benefits, as sought by the Board, but for the EIS to " furnish such infor-mation as appears to be reasonably necessary under the circumstances for the evalua-tion of the project." Britt v. Army Corps of Engineen,769 F.2d 84,91 (2d Cir.1985)
(EIS not deficient because it failed "to quantify the dollar value of the impact on traffic problems"); see also Salmon River Concerned Citizens v. Robertson,32 F. 3d 1346, 1360 (9th Cir.1994) (an EIS "need not quantify every risk, particularly less likely risks"). Indeed, CEQ's guidelines recognize that there may be "important qualitative considerations" not amenable to monetary quantification. 40 C.F.R. 51502.23. In such circumstances, the CEQ guidelines expressly provide that a " monetary cost-benefit analysis" should not be employed. Accord Suburban O'Hara Com'n v. Dole, 787 F.2d 186,191, n.8 (7th Cir.1986), cert. denied,479 U.S. 847 (1986) ("A [ formal, monetary] cost-benefit analysis is not required of an EIS"). Consequently, the Board's insistence on quantification of a price reduction, which led it to recast the qualitative benefits sought by LES and the industry, was simply misguided.
The United States Court of Appeals for the District of Columbia Circuit has considered the precise question of whether NEPA requires a particulanzed inquiry into the economic benefits of a project. Public Utilities Comm'n of Ca. v.
FERC,900 F. 2d 269 (D.C. Cir.1990). The State of California claimed that the FERC failed to properly balance advene environmental effects against the need for a pipeline because it made no particularized inquiry into the economic benefits of the project.
Id. at 282. The court summarily rejected California's argument, stating that its 19
" insistence on a particularized assessment of non-environmental features finds no sup-pon in [NEPA]." Il Thus, the Board erred in demanding absolute and quantifiable proof of a price reduction in uranium enrichment services as a result of Claiborne's operation. Moreo-ver, although a price reduction was not one of the benefits claimed by LES, the record nevertheless provides more than ample discussion of such a reduction to satisfy NEPA's rule of reason. In particular, the record includes expert testimony from Mi-i chael H. Schwanz of Energy Resources International ("ERI") that price projections for uranium emichment services would be about $2 3 per SWU higher without the Clai-borne facility. See LBP-96 25 at 72. Mr. Schwartz and ERI are world renowned ex-perts on nuclear fuel and are relied upon throughout the nuclear industry for their expertise. The Nuclear Fuel Cyde and Price Repon, which they publish annually, is considered to be the authoritative publication on this topic by nuclear utilities, ura-nium producen and others involved in the nuclear fuel cycle. Indeed, subscriben to the information include the U.S. Department of Energy (which cites the Report as a I
reference in its annual nuclear power report _/) and Canadian regulators. Remarkably, u
the Board simply dismissed the economic benefit testified to by Mr. Schwanz as mere
" pocket change." If at 87. However, this mere pocket change in fact translates into hundreds of millions of dollars in savings over the life of the facility that would be realized by the operators of commercial nuclear plants and those who benefit from the electricity that those plants generate. If at 87.92 D' See, eg, DOE /EIA-0436 (96), " Nuclear Power Generation and Fuel Cycle Report (1996)."
ut The Board also ignored the fact that the development of new technology that has the po-Footnote continued on next page 20
4 The Board's insistence on economic cenainty, and disinclination to accept oth-erwise reasonable assumptions, leads to other inconsistent and arbitrary findings. In particular, if the enrichment services market is highly competitive, as the Board found, there is no basis for the Board's assumption that competitors could exercise market power to prevent LES's entry into the market. LBP-96-25 at 67. On the other hand, if as the Board assumes, the existing producers could and would somehow substan-l tially lower their prices to prevent LES's market entry, LES's attempted entry would s
presumably have a very significant price effect with obvious benefit to utilities and their customers. The Board cannot have it both ways.
II.
The Board Erred In Rejecting The No-Action Discussion The Board criticized the FEIS' discussion of the "no-action" alternative. First, the Board thought it improper that the FEIS, when discussing the environmental im-pacts of the no-action alternative, referred to the comprehensive treatment of environ-mental impacts in the section discussing the proposal to grant the permit application.
LBP-96 25 at 102, n.10. Second, the Board disapproved of the FEIS' consideration of the secondary benefits of the proposal. Id., at 102-03. Finally, the Board misunder-j stood the NRC's regulations with regard to impacts on foreign countries. If at 99.
The CEQ has addressed the "no-action" alternative in the context of federal de-cisions on proposals for projects and has noted that no-action means that the project will not take place. Forty Most Asked Questions Concerning CEO's National i
Footnote continued from previous page tential to reduce the cost of uranium enrichment, thereby reducing the cost of electricity, is of substantial public interest. _Sg, eg, New England Coalition on Nuclear Pollution v.
NRC, supra,582 F.2d at 96 (in the context of a nuclear power plant licensing case, the court noted that an agency should not ignore the public's interest in the development ofless expen-sive sources of power).
21
Environmental Policy Act Regulations,46 Fed. Reg.18,026, Q.3 (Mar. 23,1981).
Therefore, an EPJ should compare the resulting environmental eHects of taking no-action with the effects of permitting the proposed activity to go forward. hd., How-ever, "the discussion of the socioeconomic and environmentalimpacts of inaction is the flip side of the discussion of the impacts of the action." Citizens Against Burling-ton, 938 F.2d at 198 n. 7 (emphasis in original); see also South La. Enytl. Council, Inc.
- v. Sand, 629 F.2d 1005,1017 (5th Cir.1980) (finding that "obviously, the adverse envi-ronmental effects would not take place were the project to be stopped"). Thus, prop-erly identifying and evaluating the environmental impacts of proceeding with a proposed action will simultaneously identify the benefits of not proceeding.
The FEIS correctly recognizes that, in the context of a licensing decision, there are two alternatives: to grant the license or to deny the license. The FEIS also recog-nizes that the cos+s and benefits of granting the license will be reversed if the license is denied. Therefore, it was entirely proper for the NRC Staff to address the no-action alternative by cross-referencing those portions of the FEIS that fully set forth the costs and benefits of granting the license for the CEC. Not only does this treatment com-ply with NEPA, but it furthen the CEQ's goal of reducing paperwork. See 40 C.F.R.
5 1500.4.
- It makes little sense to require an agency to repeat an analysis of costs and benefits that it has already addressed to the satisfaction of hTPA.
Second, the Board rejected the NRC's assessment of secondary impacts.
LBP-96-25 at 102-03. Because NEPA allows an agency to consider such factors, this position is erroneous.- Although socioeconomic impacts do not trigger a requirement for an EIS, if an action "will have a primary impact on the natural environment, E In addition, the CEQ regulations clearly allow an EIS to incorporate by reference exter-nal documents and materials. 40 C.F.R. $ 1502.21.
22
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L secondary socio-economic effects may also be considered." Image of Greater San An-tonio, Tex. v. Brown,570 F. 2d 517,522 (5th Cir.1978) (citations omitted). Specifi-
{
l=
cally, an agency may take into account an applicant's desire to create jobs in the area l
when considering the alternatives that must be considered. Citizens Against Burling-ton,938 F.2d at 197.E Like the FEIS for the Claiborne facility, the EIS in Citizens Against Burlington analyzed both the jobs that would be created directly by the pro-ject and those that would be created indirectly by additional payroll. Because NEPA allows an agency to consider these benefits, the Comminion should reverse the Boani's decision.
Finally, the Board stated that if the CEC were not built, the depleted uranium tails it would have produced might be produced in a foreign country. The Board con-cluded that the impacts of such uranium tails that might be produced by foreign facili-i ties should be considered avoided consequences of the no-action alternative, because the NRC's environmental regulations do not apply to such foreign environmental ef-fects. LBP-96-25 at 99. This reasoning makes no sense. Following the Boani's logic, every domestic project that could be relocated abroad would automadcally be disfa-vored under NEPA. An opponent of the project need only argue that if the facility were to be built in a foreign country, any domestic environmentalimpact could be avoided. This cannot have been the intent of NEPA.
E Moreover, wh:. evaluating the FAA's decision to approve the airport in Toledo, the coun in Citizens Against Burlington found that the agency could look at socioeconomic benefits in Toledo while ignoring, in its discussion of alternatives, the socioeconomic impacts of approving an airpon in another city. Citizens Against Burlington,938 F.2d at 198, n.7.
The coun believed that because locating the airpon in another city would not funher the l
goal of the agency action, alternatives involving locating in another city "were therefore un-reasonable and beyond the scope of the FAA's responsibilities." Id.
23 l
l It is true that the NRC's NEPA regulations state that they do not apply to f
1 "any environmental effects which NRC's domestic licensing and related regulatory l
functions may have upon the environment of foreign nations." 10 C.F.R. 5 51.10(a).
However, the plain meaning of this provision is that NEPA does not require the NRC to consider the effects that its domestic projects will have on foreign countries.
It does not mean that the environmental impacts of foreign activities should be disre-l garded just because they occur abroad where to do so would skew the NEPA evalua-
)
l tion with the artificial and unreasonable assumption that foreign options have no environmental costs.
\\
Moreover, given the competition between the uranium enrichment corpora-tion ("USEC") and foreign supplien, it is wholly speculative to predict the location whcre the uranium tails that CEC would have been produced would be generated if 1
LES were denied a license. In such an event, either USEC or foreign suppliers could increase production and no reasonable prediction is possible. NEPA does not require j
consideration of such speculative possibilities. See, g, Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017,1026 (Wh Cir.1980); Environmental Defense Fund 1
Inc. v. Hoffman,566 F.2d 1060,1067 (8th Cir.1977).
In short, the Board's reasons for concluding that the FEIS improperly evalu-ated the no-action alternative are completely lacking in merit and its decision on this point must be reversed.
24
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III.
The Board Erroneously Concluded That LES Was Not Financially Qualified A.
The Board Failed To Appreciate That The NRC's Financial Qualification Requirements Are Flexible And Not Rigid, Dogmatic Rules Of Law l
In LBP-96-25, the Board erred in applying the guidance in ' Appendix C to 10 C.F.R. Part 50 on the financial qualifications of newly formed entities applicable for cenain 10 C.F.R. Part 50 construction permits as a tigid, dogmatic rule univeually ap-plicable to all NRC licensing. The Board was wrong to apply this guidance here be.
cause this licensing proceeding is not one to which 10 C.F.R. Part 50 and Appendix C apply (discussed in Section III.B below). Moreover, even assuming 10 C.F.R. Pan 50 -
and Appendix C do have some applicability as guidance, the Board's rigid and dog-I matic application of the guidance in Appendix C is contrary to the financial qualifica-tion regulations of 10 C.F.R. Part 50 and Comminion precedent interpreting and applying those regulations (discussed in Section III.C below). These erron by the Board appear to be fueled in pan by its failure to recognize that the Commiuion places primary reliance on its inspection and enforcement activities to protect the pub-lic health and safety, and not on its financial qualification requirements.
The Commission's financial qualification requirements were bued on the proposition that a licensee's financial qualifications could affect its ability to meet its safety responsibilities. See, eg,33 Fed. Reg. 9,704 Quly 4,1968). However, the NRC has found its inquiries into the financial qualifications of its license applicants to be of
" limited usefulness." Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI 78-1, 7 NRC 1,19 (1978), affirmed, New England Coalition on 25
1 i
Nuclear Pollution v. NRC, supra,582 F.2d 87. As stated by the Commiuion in pro-I posing to eliminate the financial qualification requirements for electric utilities:
[T]he Commiuion continues to believe that technical re-viss and inspection efforts are effective, direct methods of discovering deficiencies that could affect the public health and safety. While analysis of financial qualifica-tions bs been viewed in the past as possibly an addi-tional mediod of determining an applicant's ability to 3
).
satisfy safety requirements, experience has failed to show i
a clear relationship between the NRC's review of an ap-t i
plicant's financial qualifications and the applicant's abil-ity to safely constre.ct and operate a nuclear power plant.
4 46 Fed. Reg. 41,786, 41,788 (Aug.18,1981); see also 47 Fed. Reg. 13,750, 13,751 f
(Mar. 31,1982).1E j
Accordingly, the Comminion relies principally upon its technical heensing, in-spection and enforcement functions to protect the public health and safety, and not the financi::1 qtulifications of its licensees. See, eg, Seah ak, supra, CLI-78-1, 7 NRC at 18-19. As stated by the Comminion in a decision subsequent to the bankruptcy of i
j the Seabrook applicant:
i The Commission expects here that the Staff shall ap-l ply the necessary resources to monitor Seabrook's com-l pliance with safety regulations. The Staff shall be particularly sensitive to any signs that cost-cutting is im-l pinging on safety. The Comminion has consistently pre-ferred to place its reliance on the ability of its inspectors to discern the indicia of corner cutting that could lead to W Moreover, the NRC does not audit or review how a licensee spends its monies to ensure that a financially qualified licensee properly expends its funds on meeting its health and safety responsibilities. See 49 Fed. Reg. 35, 747, 35,749 (Sept.12,1984).
26 a
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4 a lack of safety rather than on its ability to make finan-cial predicdons.
Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2),
. CLI-89-20,30 NRC 231,245 (1989) (emphasis added) (citations oniitted).
Therefore, while an applicant must show financial qualifications in accordance with the NRC's regulations, the NRC has observed that its financial qualification re-4 quirements are "more flexible than many of [its] safety criteria," Seabrook, supra, CLI-78-1,7 NRC at 9, and it hs never applied them expansively and dogmatically as done by the Board here. Rather, as discussed further below, the NRC has required for license applicants under 10 C3.R. Pan 50 only a sho' wing of a " reasonable financing plan" for obtaining the necessary funds. 7 NRC at 18. Thus, the Board erred in ap-plying the NRC's financial qualification requirements as rigid, dogmatic rules oflaw.
j B.
The Board Erroneously Applied The 10 C.F.R. Part 50 Financial Oualification Requirements To LES 4
The Comminion in the notice of hearing for this license proceeding stated y
that:
i
[t]he matters of fact and law to be considered are whether i
the application satisfies the standards set fonb in 10 CFR 30.33,40.32, and 70.23... and whether the requirements of 10 CFR pan 51 have been satisfied.
56 Fed. Reg. at 23,310.HZ No reference was made by the Commission to the require-
[
ments under 10 C.F.R. Pan 50, because the intent of section 193 of the Atomic En.
ergy Act was to no longer require the licensing of uranium enrichment facilities as
]
E The Commission also provided special standards for judging LES's application because it j
had not yet enacted regulations to implement section 193 of the Atomic Energy Act. These special standards did not address financial qualifications Sm 56 Fed. Reg. 23,310,5 IIL 4
27
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production facilities under section 103 of the Act. This change in approach was i
adopted because the hazards of mch facilities "are much less than those potentially represented by nuclear powerplants" licensed under section 103 of the Act and 10 i
j C.F.R. Part 50.E Despite the Commission's clear instruction to apply the requirements of 10 C.F.R. Pan 70, and not Part 50, and the history of section 193 that the licensing re-i quirements of production facilities were not to apply, the Board nonetheless applied the financial qualification requirements of 10 C.F.R. Pan 50 applicable to the utdiza-tion and production facilities. The Board did so because it believed - erroneously -
l that the history of the financial qualification requirements for 10 C.F.R. Part 50 and 10 C.F.R. Pan 70 reflected that the Commiuion intended the more detailed provi-sions of 10 C.F.R. Part 50 - in particular Appendix C - to be fully applicable to 11 cense applications under 10 C.F.R. Part 70 as well. The Board's decision on this point l
is simply wrong.
c The financial qualifications in 10 C.F.R. Part 70 were promulgated separately I
from those in 10 C.F.R. Pan 50 and make no reference to the financial qualification requirements of 10 C.F.R. Part 50. The current provisions of the financial qualifica-tion requirements of 10 C.F.R. Pan 70 were promulgated in March 1967. See 32 Fed.
Reg. 4,055,4,056 (1967). The corresponding financial qualification provisions for 10 C.F.R. Part 50 at that time were shon and simple. 10 C.F.R. 5 50.33(f) simply re-quired license applications under 10 C.F.R. Pan 50 to state:
?
)
E S_ee, e.g2 Licensing Uranium Enrichment Plants: Oversight Hearing Before the Sub-comm. on Energy and the Environment of the Comm'n on Interior & Insular Affairs,101st i
Cong. 2d Sess.123 (1991).
I 28 t
The financial qualifications of the applicant to engage in the pmposed activities in accordance with the regulations in this chapter.
. Neither the more detailed financial qualification provisions of 10 C.F.R. 5 50.33(f) nor the guidance of Appendix C existed at that time. These were not promulgated until July 1968. See 33 Fed. Reg. 9,704 (1968).
The Board, however, claims that the financial qualification requirements of 10 C.F.R. Pan 50 and Part 70 " essentially began as twins" and "had substantially the same meaning." LBP-96-25 at 147-49. Therefore, the Board concluded that the subsequent revisions to the 10 C.F.R. Pan 50 financial qualification provisions - and in panicular Appendix C - should be equally applicable to 10 C.F.R. Pan 70, even though the pro-visions of 10 C.F.R. Pan 70 were never amended to include them. Il at 147-58. The Board's analysis is fatally flawed in at least two respects.
First, the financial qualification standanis for 10 C.F.R. Parts 50 and 70 were not, and are not, the same. To issue a license under 10 C.F.R. Part 70, the Commh-sion need only determine that an applicant " appears to be financially qualified." 10 C.F.R. 5 70.23(a)(5) (emphasis added). To issue a license under 10 C.F.R. Part 50, the Commission must determine that an applicant "is... financially qualified." 10 C.F.R.
S 50.40(b) (emphasis added). On their face, these are two different standanis. The standard for 10 C.F.R. Part 70 is less stringent than that for 10 C.F.R. Pan 50, in recognition of the lower potential risks involved in 10 C.F.R. Pan 70 licensed activities compared to those licensed under 10 C.F.R. Pan 50.E E The Board cites to a letter ofJanuary 30,1967 from Harold L. Price, AEC Director of Regulation, to the Joint Committee on Atomic Energy as support for its position that the fi-nancial qualifications requirements for 10 C.F.R. Parts 50 and 70 were essentially the same.
Footnote continued on next page 29
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i Second, the Board cites no legal authodty for its sub silentio amendment of 10 C.F.R. Part 70 by subsequent revision to the 10 C.F.R. Part 50 regulations. Had the Commiaion intended such a result, it could have easily amended 10 C.F.R. Part 70. But it did not. To the contrary,in promulgating the financial requirements I
for new entities under 10 C.F.R. Part 50, the NRC specifically limited their applica-tion to certain license applications under 10 C.F.R. Part 50. Therefore, the Board's underlying assumption that the Comminion, sub silentio, intended to incorporate t
)
these provisions into 10 C.F.R. Pan 70 is simply wrong, because the Comminion did not even require them for all applications forlicenses under 10 C.F.R. Part 50.
Specifically, the detailed financial qualification requirements adopted in 1968 for 10 C.F.R. Part 50 provided additional requirements for new entities essentially the e
j same as those now appearing in 10 C.F.R. $ 50.33(f)(3). However, as promulgated in i
1968, the regulation expressly limited these additional financial requirements for new j
entities to only certain categories of license applications under 10 C.F.R. Part 50, 10 C.F.R. $ 50.33(f) (1969). For example, the additional financial requirements for new entities did not apply to licenses issued under 10 C.F.R. Part 50 for production or utilization facilities (not qualifying as test facilities) used in conducting research and development activities. See 10 C.F.R. $$ 50.33(f) & 50.21(c) (1969). The application Footnote continued from previous page l
LBP-96 25 at 136-40. However, the Board's reliance on Mr. Price's letter is entirely mis-placed. A review of Mr. Price's response to the third question on special nuclear material shows that the Commission's review was directed to determining the capability oflicensees to pay Commission charges for the use of special nuclear material and not the conduct of li-censed activities. Indeed, Mr. Price states in the response that the requirements of the Com-mission in this regard were "the same as we require in similar contractual arrangements for any Government-furnished goods or services." Hearings before the Joint Committee on Atomic Energy, Licensing and Regulation of Nuclear Reactors,90th Cong.,1st Sess, at 347,
- 349 (1967).
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of Appendix C, promulgated at the same time, was similarly limited. 10 C.F.R. $ 50, App. C (1969). This limitation on the scope of the additional financial qualification requirements for new entities was expressly referenced in the 1968 statement of con-4 siderations to the new regulations. 33 Fed. Reg. at 9,704.E s
Thus, the additional financial qualification requirements promulgated for new entities in 1968 as part of 10 C.F.R. Pan 50 did not even apply to all licenses issued i
under 10 C.F.R. Pan 50. Therefore, the Comminion could not have intended, as 4
1 claimed by the Boani, for these provisions to univenally apply to the other parts of its 1
regulations, such as 10 C.F.R. Pan 70. That these provisions do not have the broad universal application claimed by the Board is reflected by the fact that the financial I
qualification provisions of 10 C.F.R. Part 72 (promulgated initially in 1980) do not j
include or incorporate by reference the financial qualification provisions of 10 C.F.R.
]
i Pan 50 regarding new entities. See 10 C.F.R. $ 72.22(e) (financial qualification require-ments for independent spent fuel installation facilities).
i d
In short, the financial qualification provisions of 10 C.F.R. Part 50 and Part 70 are not, and have never been, " twins" as claimed by the Board. To the contrary, the j
standard for 10 C.F.R. Pan 70 is less stringent in recognition of the lower potential risks involved in 10 C.F.R. Part 70 licensed activities. In 1990, Congress determined that, because of their lower level of risk to the public health and safety, uranium en-richment facilities should be licensed under 10 C.F.R. Part 70 and not Part 50. The E In amending the financial qualification requirements under 10 C.F.R. Part 50 in the 1980s to no longer require electric utility applicants for operating licenses to demonstrate financial qualifications, the above limitation on the applicability of 10 C.F.R. $ 50.33(f) for new enti-ties was deleted. No reason was given in the statement of considerations for this change.
However, the applicability of Appendix C still remains limited as it did when initially prom-ulgated in 1968.
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l Board's decision would reverse what Congress has mandated insofar as financial quali-fications are concerned.
j C.
The Board Erroneously Interpreted The Financial Oualification Requirements Of 10 C.F.R. Part 50 i
Even assuming the financial qualification requirements of 10 C.F.R. Part 50 were applicable, the Board misapplied these requirements. The Boani dogmatically 5'
and rigidly applied the guidance from Appimdix C of 10 C.F.R. Pan 50 for new enti-ties contrary to the express warnings of Appea lix C, the clear provisions of 10 C.F.R.
$ 50.33(f)(3) and NRC precedent.
At bouom, the peg on which the Bond hangs its decision, and CANT its argu-cr 2ts, are three sentences in section II of Appendix C of 10 C.F.R. Part 50 applicable to " Applicants Which Are Newly Formed Entities":
The application should specifically identify the source or sources upon which the applicant relies for the funds nec-i essary to pay the cost of constructing the facility, and the amount to be obtained from each. With respect to each source, the application should describe in detail the appli-cant's legal and financial relationships with its stockhold-en, corporate affiliates, or othen (such as financial institutions) upon which the applicant is relying for fi-nancial assistance. If the sources of funds relied upon in-clude parent companies or other corporate affiliates, information to support the financial capability of each such company or affiliate to meet its commitments to the applicant should be set forth in the application.
10 C.F.R. $ 50, App. C $ II.A.2 (emphasis added). Based on this guidance in Appendix C, the Board concluded that LES, as a new entity:
31
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i "must... fully detail its ' legal and financial relationship' with its corporate affiliates and any financial institutions upon which it relies for funding."
LBP-96 25 at 157 (emphasis added).
i "must demonstrate the commitments of the corporate affiliates of the LES
. partners to fund the equity portion of the facility construction costs."
LBP-96-25 at 178 (emphasis added); see also M. at 164,174-176.
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must " fully detail I 1 the legal and financial relationship it has entered into with the financial institutions upon which it relies for the debt portion of the construction funds...." LBP-96-25 at 164 (empha::is added); see also M.
at 178.
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As can be seen by comparing the provisions of Appendix C relied upon by the i
Board to its holdings in LBP-96-25, the Board has transformed the guidance set forth in Appendix C into rigid, dogmatic rules of law. This is directly contrary to the ex-press warning found in Appendix C that "[t]he kind and depth of information de-4 scribed in [the] guide is not intended to be a rigid and absolute requirement." 10 j
C.F.R. $ 50 App. C ("GeneralInformation").
Further, the Board's interpretation of Appendix C that formal, legally enforce-
)
able cornmitments must be in place in order to satisfy the financial qualification re-
]
quirements of 10 C.F.R. Part 50 is directly contrary to the express provisions of 10 1;
C.F.R. $ 50.33(f). The regulation expressly allows a new entity to provide the NRC l
with the " financial relationship" it " proposes" to have with its owners and the ability of the owners to meet the obligations to the new entity that are " proposed." In this j
regard,10 C.F.R. S 50.33(f)(3) (i) and (ii) expressly provide that a new entity must describe:
(i) [t]he legal and financial relationships it has or pro-poses m have with its stockholders or owners; [and]
33 w
(10 (their] financial ability to meet any contractual obli-gation to the entity which they have incurred or pro-posed to incur....
10 C.F R. S 50.33(f)(3)(i)-(i0 (emphasis added). Thus, the financial qualification regula-tions of 10 C.F.R. Part 50 do not require - contrary to the Boani's holding-legally enforceable commitments to be in place.
The provisions of Appendix C relied upon by the Board and quoted above do not require anything different. The third sentence quoted above simply provides that
"[i]f the sources of funds relied upon include parent companies or other corporate af-filiates, information to support the financial capability of each such company or affili-ate to meet its commitments to the applicant should be set forth in the application."
(emphasis added). To be consistent with the regulation, commitment here must be read to mean " actual or proposed" commitment, contrary to the Board's holding.
Similarly, the previous sentence in Appendix C - which calls for the application to de-scribe "the applicant's legal and financial relationships with its stockholders, corporate affiliates, or others" upon which it is relying for funds - must be read to mean " actual or proposed" legal and financial relationship in order to be consistent with 10 C.F.R. Part 50.33(f), again contrary to the Board's holding.
The Board's holdings are also contrary to Comminion precedent on the show-ing of financial qualifications required under 10 C.F.R. Part 50. Public Service Com-pany of New Hampshire, CLI 78-1, supra, 7 NRC at 18. In that case, the Commission interpreted the requirement of 10 C.F.R. $ 50.33(f)(1) that "an applicant possesses or has reasonable assurance of obtaining the funds" necessary to cover the es-timated construction as follows:
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"[Rleasonable assurance" does not mean a demonstration of near cenainty that an applicant will never be pressed for funds in the course of constmetion. It does mean
{
i that the applicant must have a reasonable financing plan in the light of relevant circumstances.
Id. (emphasis added). That reasonable assurance requires only a reasonable financing plan for obtaining the funds refutes the Board's position that a legally, enforceable commitment is required. Indeed, the issue in Seabrook was the potential difficulty that the utility would have in raising sufficient funds to cover construction costs, the same concern raised by the Board here.
i The Board claims, however, that Seabrook "is simply inapposite" here because that decision was concerned solely with established utilities and not newly formed en-tities. LBP 96 25 at 155. However, the Commhsion addressed there the overarching requirement that an " applicant possesses or has reasonable assurance" of obtaining the necessary construction funds for a project, which is equally applicable to newly formed entities as well as to established utilities. By requiring LES to have in place le-gally enforceable funding commitments, the Board is in effect requiring LES to legally
" possess" the necessary funds and is precluding LES from alternatively showing "rea-sonable assurance" of obtaining such funds as the regulation explicitly allows. The Board is requiring a demonstration of "near certainty" - not re.sonable assurance.M Nothing in the Seabrook decision or the regulations suggests that the regulatory stan-dard of " reasonable assurance" is inapplicable to newly formed entities. To the con-trary, as discussed, the provisions of 10 C.F.R. S 50.33(f)(3) expressly allow newly
- Absolute certainty is not required because, as discussed above, the Commission's finan-cial qualification requirements are not its primary mechanism for assuring public health and safety. As noted by the Commission in Seabrook, the NRC can always halt activities if insuf-ficient funds leads to potential health and safety problems. 7 NRC at 19.
35
O formed entities to show the " proposed" relationship with other entities on which it relies for funds.
In short, the Board erred in requiring LES to demonstrate actual commitments for the source of funds, both equity and debt, on which it relies for constructing the Claiborne facility. Indeed, in light of the six-year period that has already elapsed since the filing of the application, it is simply unimaginable to believe that LES or any other entity could have, or would have, obtained such commitments (at least as to the debt financing) so far in advance of actual construction. As the representative of the nu.
clear industry, NEI is very concerned about such practical consequences that would result from the Board's holding. Prudent investon orlenders are not likely to make a long term commitment - much less an irrevocable commitment - of funds for a pro-ject of this magnitude pending such a long and uncenain licensing process. The end result would be to limit severely and unwisely future investment in the nuclear area, panicularly as restructuring and deregulation of the electric utility industry establishes a different market place than the cost of service rate-making paradigm on which cur-rent nuclear plants were constructed.
j D.
LES Is Financially Qualified In Accordance With The NRC's Regulations i
As discussed, the regulatory standard for financial qualifications under 10 C.F.R. Part 70 is less demanding than that under 10 C.F.R. Part 50. But even if LES were proceeding under 10 C.F.R. Part 50, it would only need to show under the Com-mission's Seabrook precedent a " reasonable financing plan" for obtaining the neces-sary funds to construct the Claiborne facility. Therefore, if the financing plan 36
r proposed by LES to constmet the Claiborne facility is reasonable, the financial qualifi-cation requirements for 10 C.F.R. Part 70 would certainly be met.
From NEI's review of the factual record it appean that LES has presented such 2 plan. LES proposes to fund 30-40% of the project through equity contributions from its general and limited panners. Those partnen are all backed by large. existing companies that would have sufficient capital to contribute their portion of the equity required. The remaining constmetion costs would be provided by debt financing.
LES provided expert testimony that it would be able to obtain loans at reasonable in-terest rates for the debt portion of the total cost. Such expen testimony was the usual means by which applicants seeking permits to constmct nuclear power plants undct 10 C.F.R. Part 50 established reasonable assurance that they would be able to obtain the bond or other debt financing necessary to constmct the plant. Thus, as the Staff concluded, LES has proposed a reasonable plan for financing the construction of the Claiborne facility.E Moreover, the funding approach used by LES and its partners for the Clai-borne facility is common for venture type enterprises in which a special company is established to develop a project but is not heavily funded until just before construc-tion. It enables investors to put fonh limited funds to develop a project until such time as the project becomes viable, for example, by obtaining the necessary regulatory permits. Thus, what is imponant forinvestors, lenders and regulatory bodies alike in evaluating the funding for such projects is the reasonableness of the financing plan for the project if the project goes forward. NEI believes that such an approach to devel-oping and constructing nuclear facilities will become more common as the electric E
NUREG-1491, " Safety Evaluation Report for the Claiborne Enrichment Center, Homer, Louisiana," $ 13 Qan.1994).
37 O
7._ -. _._
e 4-I e
'1.
utility industry is restructured and will be important if the nuclear industry is to re-main an integral part of the energy mix in the United States.
5 l
The Board raised various concerns, however, regarding this approach as used a
for the Claiborne facility largely related to problems that it perceived arising from not having irrevocable commitments in place for funding the project. In panicular, the Board repeatedly stressed that the Commission could grant a license and the principals could decide not to fund the project, purely for commercial reasons, with the license remaining outstanding for its 30-year term. Sg, g, LBP-96-25 at 150-51, n.18.
The Board's concern, however, confuses the commercial wisdom of proceeding with the project - solely the domain of LES and its partners - with protecting'the public health and safety. If the project never proceeds due to a lack of financing, no adverse impact to the public health and safety would result. In this regard, numerous construction permits for nuclear power plants were issued for which construction was either never started or else never completed. Thus, nothing new or unusual would oc-cur if, for commercial reasons, LES and its partners decided not to go forward with the project after receiving the license. Accordingly, the concerns raised by the Board with respect to LES's approach for financing the Claiborne facility in no way ad-versely implicate the NRC's health and safety functions.
38 1
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r CONCLUSIOff For the foregoing reasons, the Commission should reverse the Board's cleci-sion. The decision is erroneous and, if left to stand, could adversely effect the course of many future NRC licensing proceedings and add uncertainty and unnecessary risk to any activities subject to NRC licensing.
Respectfully submitted, t
l Nuclear EnergyInstitute Shaw, Pittman, Potts & Trowbridge 1776 I Street, N.W.
2300 N Street, N.W.
Washington, D.C. 20006 Washington, D.C. 20037 1
km/,gc A
Robert W. Bishop Y E[ilberg j
Vice President and General Counsel avid R. Lewis Paul A. Gaukler i
Paul Gormley Counsel for Nuclear Energy Institute Dated: March 13,1997 39 u
..A.
m
March 13,0':lCEETED
. M RC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION W MAR 13 P4 :16 Before the Commission 0FFICE OF SECRETARY DOCKETING & SERVICE BRANCH In the Matter of
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Docket No. 70-3070-ML LOUISIANA ENERGY SERVICES, L.P.
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(Special Nuclear Material License)
(Claiborne Enrichment Center)
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CERTIFICATE OF SERWCE I hereby certify that copies of" Motion by the L'.sclear Energy Institute for Leave to File Amicus Brief on Review of LBP-96-25" and " Nuclear Energy Institute's Amicus Brief on Review of LBP-96-25" have been served on the persons listed below by deposit in the United States mail, first class, postage prepaid, or where indicated by an asterisk by hand delivery, or where indicatd by a double asterisk by both facsimile and first class mail, this 13th day of March, 1997.
- Shirley A. Jackson, Chairman
- Kenneth C. Rogers, Commissioner U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mail Stop O-16 GIS Mail Stop O-16 GIS One White Flint North One White Flint North i
11555 Rockville Pike 11555 Rockville Pike Rockville, MD 20852-2738 Rockville, MD 20852-2738 i
l
- Greta J. Dicus, Commissioner
- Edward McGaffigan, Jr., Commissioner j
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Comnussion Mail Stop O-16 GIS Mail Stop O-16 GIS l
One White Flint North One White Flint North I
11555 Rockville Pike 11555 Rockville Pike Rockville, MD 20852-2738 Rockville, MD 20852-2738 l
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- Nils J. Diaz, Commissioner
- Thomas S. Moore, Chairman U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Mail Stop O-16 GIS U.S. Nuclear Regulatory Commission One White Flint North Two White Flint North 11555 Rockville Pike 11545 Rockville Pike Rockville, MD 20852-2738 Rockville, MD 20852-2738
- Richard F. Cole, Administrative Judge
- Frederick J. Shon, Administrative Judge Atomic Safety and, Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Two White Flint North Two White Flint North 11545 Rockville Pike 11545 Rockville Pike Rockville, MD 20852-2738 Rockville, MD 20852-2738
- Office of the Secretary
- Office of Appellate Adjudication Attn: Docketing and Service Branch U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission One White Flint North One White Flint North 11555 Rockville Pike 11555 Rockville Pike Rockville, MD 20852-2738 Rockville, MD 20852-2738 Atomic Safety and Licensing Board
- Richard G. Bachmann, Esq.
Panel Eugene Holler, Esq.
U.S. Nuclear Regulatory Commission Office of the General Counsel Washington, DC 20555 U.S. Nuclear Regulatory Commission One White Flint North 11555 Rockville Pike Rockville, MD 20852-2738
- T. Michael McGarry, III, Esq.
- Marcus A. Rowden, Esq.
Winston & Strawn Fried, Frank, Harris, Shriver & Jacobsen 1400 L Street, N.W.
I101 Pennsylvania Avenue, N.W.
Washington, D.C. 20005 Suite 900 South Washington, DC 20004 Peter LeRoy Dr. W. Howard Arnold Duke Engineering & Services,Inc.
Louisiana Energy Services, L.P.
P.O. Box 1004 2600 Virginia Avenue, N.W.
Charlotte, NC 28201-1004 Suite 608 Washington,DC 20037 1
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- Diane Curran, Esq.
- *Nathalie M. Walker, Esq.
4 c/o IEER Sierra Club Legal Defense Fund 6935 Laurel Avenue, Suite 204 400 Magazine Street, Suite 401 Takoma Park, MD 20912 New Orleans, LA 70130 Joseph Distefano, Esq.
David S. Bailey, Esq.
Urenco Investments, Inc.
Thomas J. Henderson, Esq.
2600 Virginia Avenue, NW, Suite 610 Lawyers' Conunittee for Civil Washington, DC 20037 Rights Under Law 1450 G Street, N.W., Suite 400 Washington, DC 20005 Mr. Ronald Wascom Deputy Assistant Secretary Office of Air Quality & Radiation Protection P.O. Box 82135 Baton Rouge, LA 70884-2135 t
U 1
Paul A. Gaukler~
Counsel for Nuclear Energy Ins'.itute i
420395 01 / DOCS 0C1