ML23055A149

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Notice of Appeal of LBP-23-02 by Petitioner Erwin Citizens Awareness Network, Inc. and Brief in Support of Appeal
ML23055A149
Person / Time
Site: Erwin
Issue date: 02/24/2023
From: Lodge T
Erwin Citizens Awareness Network, Law Office of Terry J. Lodge
To:
NRC/OCM
SECY RAS
References
ASLBP 23-976-01-LA-BD02, RAS 56652, 70-143-LA, LBP-23-02
Download: ML23055A149 (0)
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Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of: ) Docket No. 70-143-LA

)

Nuclear Fuel Services, Inc. ) February 24, 2023

)

(License Amendment Application) )

)

NOTICE OF APPEAL OF LBP-23-02 BY PETITIONER ERWIN CITIZENS AWARENESS NETWORK, INC. AND BRIEF IN SUPPORT OF APPEAL Terry J. Lodge, Esq.

316 N. Michigan St., Ste. 520 Toledo, OH 43604-5627 (419) 205-7084 tjlodge50@yahoo.com Counsel for Erwin Citizens Awareness Network, Inc.

TABLE OF CONTENTS TABLE OF AUTHORITIES 3 NOTICE OF APPEAL 6 BRIEF IN SUPPORT OF APPEAL 6 I. INTRODUCTION 6 II. BACKGROUND 7 A. Factual Background 7 B. Procedural Background 8 III. ARGUMENT 10 A. Standing Was Properly Accorded ECAN And Is Not At Issue 10 B. The ASLB Erroneously Rejected Contention A 11

1. The Boards Improper Rush to Judgment 12
2. The Too-Big-to-Analyze Problem of Weapons Proliferation 17 C. The ASLB Erroneously Rejected Contention B 20 D. The ASLB Erroneously Rejected Contention C 22
1. Radiological Contamination 22
2. PFAS Groundwater Contamination 25
3. Sinkholes and Groundwater Plumes 26
4. Air Emissions 26
5. ECAN Is Not Challenging NRC Regulations 27 E. The ASLB Erroneously Rejected Contention D 28 IV. CONCLUSION 32 CERTIFICATE OF SERVICE 32 2

TABLE OF AUTHORITIES Cases Page(s)

Animal Def. Council v. Hodel, 840 F.2d 1432, 1439 (9th Cir. 1988) 17 Connecticut Bankers Association v. Board of Governors, 627 F.2d 245 (D.C. Cir. 13 1980)

EarthReports, Inc. v. FERC, 828 F.3d 949, 953 (D.C. Cir. 2016) 23 Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976) 23 Lands Council v. Powell, 395 F.3d 1019, 1032 (9th Cir. 2005) 17 League of Wilderness Defenders-Blue Mountains Biodiversity Project v. U.S.

Forest Serv., 689 F.3d 1060, 1073-75 (9th Cir. 2012) 17 Macht v. Skinner, 715 F. Supp. 1131, 1135 (D.D.C. 1989). 19 Native Village of Point Hope v. Salazar, 730 F. Supp. 2d 1009, 1012 (D. Alaska 2010) 23 NRDC v. Hodel, 865 F.2d 288, 297-98 (D.C. Cir. 1988) 18 Piedmont Heights Civic Club, Inc. v. Moreland, 637 F.2d 430 (5th Cir. 1981) 18 Sierra Club v. Mainella, 459 F. Supp. 2d 76, 107-08 (D.D.C. 2006) 23 S. Utah Wilderness All. v. Norton, 326 F. Supp. 2d 102, 119-20 (D.D.C. 2004) 23 Swain v. Brinegar, 542 F.2d 364 (7th Cir. 1976) 18 Te-Moak Tribe v. U.S. Dept of the Interior, 608 F.3d 592, 601 (9th Cir. 2010) 24 Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S., 519, 554 (1978) 25 Wyo. Outdoor Council v. U.S. Army Corps of Engrs, 351 F. Supp. 2d 1232, 1237 (D. Wyo. 2005) 24 Administrative Rulings Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2, & 3), LBP-91-19, 33 NRC 397, 411 (1991), appeal denied, CLI-91-12, 34 NRC 149 (1991) 13 Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-106, 6 AEC 182, 184 (1973) 21 3

Consumers Power Co. (Midland Plant, Units 1 & 2), CLI-83-2, 17 NRC 69, 70 (1983) 31 Consumers Power Co. (Midland Plant, Units 1 & 2), LBP-84-20, 19 NRC 1285, 1297 (1984) 31 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-07-2, 65 NRC 10, 11 (2007) 7 Gulf States Utilities Co. (River Bend Station, Unit 1), CLI-94-10, 40 NRC 43, 51 (1994) 13 Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1),

ALAB-590, 11 NRC 542 (1980) 13 Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), ALAB-799, 21 NRC 360, 371-74 (1985) 31 Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-05-28, 62 NRC 721, 724 (2005) 17 La. Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-812, 22 NRC 5, 48, 51 (1985) 31 Metro. Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-772, 19 NRC 1193, 1207 (1984), revd in part on other grounds, CLI-85-2, 21 NRC 282 (1985) 30, 31 Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1 & 2),

ALAB-130, 6 AEC 423, 424 (1973) 7 Piping Specialists, Inc. (Kansas City, Missouri), LBP-92-25, 36 NRC 156, 153 (1992) 31 Power Authority of the State of New York, et al. (James FitzPatrick Nuclear Power Plant; Indian Point Nuclear Generating Unit 3), CLI-00-22, 52 NRC 266, 95 (2000) 13 Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), LBP-89-28, 30 NRC 271, 282 (1989), affd on other grounds, ALAB-940, 32 NRC 225 (1990) 13 Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station),

ALAB-869, 26 NRC 13, 23-24 (1987), reconsid. denied on other grounds, ALAB-876, 26 NRC 277 (1987) 13 4

Washington Public Power Supply System (WPPSS Nuclear Project No. 2), ALAB-722, 17 NRC 546, 551 n.5 (1983) 13 Statutes 42 U.S.C. § 2239(a) 8 42 U.S.C. § 4332(C)(iii) 23 Regulations 10 C.F.R. § 2.309 6, 27 10 C.F.R. § 2.311(c) 6,7 10 C.F.R. § 51.45 27 10 C.F.R. § 51.60 27 10 C.F.R. § 70.64 8 10 C.F.R. § 70.72(c) 8 10 C.F.R. Part 70 7, 11, 12, 14 10 C.F.R. § 830.121 28 10 C.F.R. § 830.122 28 40 C.F.R. § 1502.23 16 40 C.F.R. § 1502.16 23 40 C.F.R. § 1508.7 23 40 C.F.R. § 1508.8 23 40 C.F.R. § 1508.9 23 40 C.F.R. § 1508.25 19, 22 Other Authorities NUREG-1748, Environmental Review Guidance for Licensing Actions Associated With NMSS Programs, p. 6-5 25, 27 5

NOTICE OF APPEAL Petitioner Erwin Citizens Awareness Network, Inc. (hereinafter ECAN or Petitioner),

by and through counsel, pursuant to 10 C.F.R. § 2.311(c), hereby gives notice of its appeal to the U.S. Nuclear Regulatory Commission (Commission) from the Atomic Safety and Licensing Boards (ASLB) ruling, LBP 23-02, Memorandum and Order (Denying Intervention Petition and Terminating Proceeding) (January 30, 2023) (Memorandum and Order) in this proceeding. ECAN appeals and seeks reversal of the ASLBs decisions which individually and collectively denied admission of ECANs proffered contentions for adjudication and then terminated the case.

/s/ Terry J. Lodge Terry J. Lodge, Esq.

Counsel for ECAN, Petitioner-Appellant BRIEF IN SUPPORT OF APPEAL I. INTRODUCTION On October 31, 2022, Petitioner ECAN filed its Petition for Leave to Intervene in Nuclear Fuel Services, Inc. License Amendment Proceeding and Request for a Hearing (ML18257A334) (Petition to Intervene). The assigned Atomic Safety and Licensing Board (ASLB) ruled on January 30, 2023 that Petitioner had pleaded no admissible contention and terminated the case:

For the reasons set forth above in section II.B, ECAN has provided an adequate showing to establish its representational standing in this license amendment proceeding regarding NFSs Erwin facility. For the reasons described in section III.B above, however, we find that under the applicable standards of 10 C.F.R. § 2.309(f)(1) ECAN has failed to establish the grounds for admitting any of its four contentions.

Accordingly, ECANs hearing request is denied.

Memorandum and Order at 55. These are the ultimate holdings of the ASLB and they are the subjects of this appeal.

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The specific grounds for the petition are that the ASLB erred in rejecting Petitioners proffered Contentions A, B, C and D.

The portion of a prehearing conference order which grants or wholly denies a petition for leave to intervene is appealable under 10 C.F.R. § 2.311 (formerly § 2.714a). Mississippi Power

& Light Co. (Grand Gulf Nuclear Station, Units 1 & 2), ALAB-130, 6 AEC 423, 424 (1973). A petitioner may appeal an order under 10 C.F.R. § 2.311 if the effect thereof is to deny a petition to intervene in its entirety - i.e., to refuse petitioner entry into the case, and only if the Board rejects all of the intervenors proposed contentions. Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-07-2, 65 NRC 10, 11 (2007). The ASLB denied Petitioner entry into the case and rejected all of its proffered contentions in the January 30, 2023 Memorandum and Order, hence the order is appealable to the full Commission as a matter of right under § 2.311.

II. BACKGROUND A. Factual Background In a November 18, 2021 letter to the agency, Nuclear Fuel Services (NFS) requested an amendment to its existing 10 C.F.R. Part 70 special nuclear materials (SNM) license, SNM-124.

The proposed amendment would allow NFS to provide uranium purification and conversion services at its Erwin, Tennessee nuclear fuel fabrication facility. According to the NFS application, the license amendment request stems from a contract awarded to NFS by the U.S.

Department of Energys (DOE) National Nuclear Security Administration (NNSA) for the U-Metal Project. That contract, the amendment application indicates, is intended to bridge the gap between the shutdown of the NNSAs Oak Ridge Y-12 facilitys legacy uranium processing equipment and the transition to a new facility at Y-12 that uses new electrorefining technology to 7

purify high-enriched uranium metal. The purified high-enriched uranium metal will be produced for use in the United States thermonuclear weapons program. 1 NFS application reflects that, in accordance with 10 C.F.R. § 70.72(c), NFS is required to seek NRC approval of the license changes necessary to implement the new U-Metal process, including addressing the baseline design criteria set forth in 10 C.F.R. § 70.64. To address these regulatory requirements, attachments to the NFS application included a proposed supplemental environmental report (Supplemental ER) evaluating the environmental impacts associated with the addition of the U-Metal Project.

On March 25, 2022, the NRC Staff acknowledged receipt of the information necessary to accept the NFS license amendment application and proceed with its detailed licensing review.

Then, on April 28, 2022, the NRC Staff issued a request for additional information (RAI) seeking material it deemed necessary to complete its detailed environmental review, to which NFS responded on June 30, 2022.

B. Procedural Background On April 27, 2022, the NRC Staff published a Federal Register notice indicating that it had received the November 2021 NFS license amendment application. Further, in accordance with Atomic Energy Act (AEA) § 189a, 42 U.S.C. § 2239(a), the NRC Staffs notice stated that within 60 days any person whose interest might be affected by the application could file a hearing request and petition for leave to intervene challenging that application. See 87 Fed. Reg.

25,055. On June 10, 2022, ECAN submitted a request for a three-month extension of this filing deadline, citing hardships related to the ongoing COVID-19 pandemic and a lack of broadband 1

https://www.exchangemonitor.com/nnsa-looks-bwxt-subsidiary-hedge-heu-shortfall; https://www.def ensedaily.com/nuclear-fuel-services-to-start-weapons-uranium-work-under-sole-source-nnsa-co ntract/nuclear-modernization/;ttps://m.usw.org/news/media-center/articles/2021/nuclear-fuel-services-to-gain-more-jobs.

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internet access. The Secretary of the Commission granted an extension in part in a June 24, 2022 order extending the hearing petition filing deadline until July 27, 2022.2 This was followed by a second ECAN extension request, dated July 26, 2022, seeking an additional three months to file a hearing petition. In an August 8, 2022 order, the Secretary noted that the deadline for filing a hearing petition challenging the NFS application would be governed by a new hearing opportunity notice that the NRC Staff had advised was needed to outline the procedures by which a potential party could seek access to nonpublic sensitive unclassified non-safeguards information (SUNSI) documents provided by NFS in support of the license amendment application.3 .

The NRC then published a hearing opportunity notice in the Federal Register on August 31, 2022, that set an October 31, 2022 deadline for any hearing requests challenging the NFS license amendment application.4 On October 31, 2023 ECAN filed a petition for leave to intervene, and later on the same day, an amended hearing petition in which it proffered four contentions challenging various aspects of the NFS license amendment request.5 In answers filed by the NRC Staff and NFS on November 23 and 25, 2022, respectively, those parties differed on ECANs representational standing in this proceeding, and both challenged the admissibility of ECANs four contentions.6 In its December 2, 2022 reply, ECAN 2

See Commission Order (June 24, 2022) at PDF 1 & n.1 (unpublished).

3 See August 8, 2022 Commission Order at 1-2.

4 See [NFS], 87 Fed. Reg. 53,507, 53,508-09 (Aug. 31, 2022).

5 See Petition of [ECAN] for Leave to Intervene in Nuclear Fuel Services, Inc. License Amendment Proceeding, and Request for a Hearing (Oct. 31, 2022); Amended Petition of [ECAN] for Leave to Intervene in Nuclear Fuel Services, Inc. License Amendment Proceeding, and Request for a Hearing (Oct.

31, 2022) [hereinafter ECAN Amended Hearing Petition]. The subsequently filed ECAN submission is the document which is the focus of this litigation.

6 NRC Staff Answer to [ECAN] Petition to Intervene and Request for Hearing (Nov. 23, 2022) at 1

[hereinafter Staff Answer]; [NFS]s Answer to [ECAN]s Hearing Request and Petition for Leave to Intervene (Nov. 25, 2022) at 1 [hereinafter NFS Answer].

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asserts that all of its contentions are admissible such that it should be accepted as a party to this proceeding.7 In a series of issuances, the Board scheduled an initial prehearing conference,8 conducted via WebEx on December 12, 2022, during which the Board heard oral argument from the participants on the sufficiency of ECANs contention admissibility claims.

III. ARGUMENT A. Standing Was Properly Accorded ECAN And Is Not At Issue The ASLB determined that Erwin Citizens Awareness Network properly demonstrated associational standing, and ECAN concurs with ASLBs ruling, as follows, in all respects:

In a prior proceeding involving the NFS facility, a licensing board concluded that residents located between two and twenty miles from the NFS facility failed to make a sufficient showing of a particularized injury relative to a proposed licensing action authorizing the downblending of uranium. That licensing board also determined that an individual residing within one mile of the NFS Erwin facility and passing directly by the facility five days a week had established standing based on the individuals proximity to the facility and the applications description of the potential accidents that could occur from the downblending process. See Nuclear Fuel Servs., Inc., LBP-04-5, 59 NRC at 196-98. In this instance, as the NRC Staff points out, criticality and uranium hexafluoride accidents like those referenced in the ECAN members standing declaration are among those specified in the NFS emergency plan submitted with the November 2021 license amendment application, which are denoted as having potential offsite consequences. See Staff Answer at 6; ER at 7. Accordingly, consistent with agency caselaw, the analogous factual circumstances in this case lead us to conclude the ECAN members standing has been established through the proximity plus presumption.

Additionally, to demonstrate that ECAN as an organization has representational standing, ECANs president provided an affidavit in support of its hearing petition. This declaration shows that ECAN has met the representational standing requirements specified above, most notably that ECANs primary purpose is to research and investigate issues involving the nuclear industry that affect the health, safety and environment in Erwin, Tennessee.

7 See [ECAN]s Combined Reply in Support of Petition for Leave to Intervene (Dec. 2, 2022) at 1-2

[hereinafter ECAN Reply].

8 See Licensing Board Memorandum and Order (Initial Prehearing Order) (Nov. 9, 2022) at 6-7 (unpublished) [hereinafter Initial Prehearing Order]; Licensing Board Memorandum and Order (Tentative Initial Prehearing Conference Schedule) (Nov. 22, 2022) at 1-2 (unpublished); Licensing Board Memorandum and Order (Scheduling Initial Prehearing Conference) (Dec. 6, 2022) (unpublished).

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We thus conclude that ECAN has established its representational standing to intervene in this proceeding and move next to determining whether any of its four contentions are admissible so as to merit granting its hearing petition and admitting ECAN as a party in this proceeding.

LBP-23-02 at p. 10.

B. The ASLB Erroneously Rejected Contention A ECANs Contention A stated as follows:

The new process at NFS will provide purified HEU material for inclusion in nuclear weapons. It is an activity that signals to the international community continued U.S. government support for a policy of producing nuclear weapons for warmaking. The policy projects a message internationally that inclusion of continuously-improved nuclear weapons in international relations is acceptable. That policy is increasingly at odds with international laws and norms. Under NEPA, the NRC is required to investigate, analyze and publicly disclose a nuclear weapons proliferation assessment, discussing the impacts and policy implications of the new NFS purification process on the U.S. weapons program and prospects.

The ASLB decision rejected Contention A using the below reasoning:

As the NRC Staff suggested, see Staff Answer at 13, see also Tr. at 73-74 (Roach), even if the NNSA, as an authorized federal government entity, received the U-Metal processed material and used it for nuclear weapons production, the metals end use is not a relevant factor for the purpose of determining whether a proliferation impacts analysis is required under the AEA or NEPA.

Rather, as the Commission has recognized regarding fuel cycle facilities generally, the purified uranium metals fabrication by NFS would fall within the confines of the NRCs domestic Part 70 nuclear materials licensing and regulatory process. Part 70s health, safety, and security protections are designed to prevent nuclear equipment and material, as well as classified information and sensitive technologies, from becoming available to unauthorized foreign or domestic individuals or entities. A further proliferation analysis is not required by these regulations. In conjunction with the speculative nature of the proliferation assessment process that would be based on policy information and analyses remote from both the NRCs licensing process and the license request at issue, this establishes that the Commissions previous fuel cycle facility-related pronouncements that neither the AEA nor NEPA mandates the preparation of a proliferation assessment apply with equal force here.

Because ECAN has failed to meet its burden to establish that Contention A is within the scope of this proceeding and that it raises a genuine dispute regarding a material issue of law or fact, we do not admit that contention.

Memorandum and Order, LBP-23-02 at 25-26.

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1. The Boards Improper Rush To Judgment The Licensing Boards analysis is faulty. First, the ASLB ruled on the substantive merits of the contention when it circumscribed the evidence it would consider by pronouncing that the metals end use is not a relevant factor for the purpose of determining whether a proliferation impacts analysis is required under the AEA or NEPA. Id. How is the end use for the refined metal - to generate feedstock for thermonuclear weapons being built in probable violation of international treaty obligations - irrelevant in determining whether nuclear weapons proliferation assessment is necessary to fulfill NEPAs mandates?

By ignoring the stark evidence that NFS would produce thermonuclear weapons material for bomb making, the Board reflexively ruled that NFS new weapons material refinement process would be evaluated only under the weak safeguards constraints of 10 C.F.R. Part 70 and there would not be an investigation of where the new product line fits into the overall U.S.

nuclear weapons program. The Board disposed of the contention by disregarding the proliferation impacts that follow from the use of the refined HEU in bombs. The ASLB spontaneously transformed a preliminary, procedural decision about whether or not the proposed contention was sufficiently alleged into a summary ruling on the merits.

Contentions are issues advanced by putative intervenors for the purpose of being subjected to the rigors of discovery, expert analysis and ultimately, adversarial trial. Here, both the NRC Staff and NFS argued facts and law in the manner of a summary trial and they persuaded the ASLB to rule on the merits, surpassing the prima facie determinations the Board was required to make. Arguments of competing evidence were weighed for their evidentiary value and adopted by the ASLB in the form of a substantive decision. Consequently, ECAN was deprived of substantive due process.

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The admission of contentions for litigation is not meant to substitute mere lawyer representations for actual discovery, motion practice and adjudication on the merits. A contention need only be specific and have a basis. Whether or not it is true is left to litigation on the merits later in the licensing proceeding. Washington Public Power Supply System (WPPSS Nuclear Project No. 2), ALAB-722, 17 NRC 546, 551 n.5 (1983), citing Houston Lighting and Power Co.

(Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542 (1980); Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-869, 26 NRC 13, 23-24 (1987), reconsid. denied on other grounds, ALAB-876, 26 NRC 277 (1987); Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), LBP-89-28, 30 NRC 271, 282 (1989), affd on other grounds, ALAB-940, 32 NRC 225 (1990); Arizona Public Service Co.

(Palo Verde Nuclear Generating Station, Units 1, 2, & 3), LBP-91-19, 33 NRC 397, 411 (1991),

appeal denied, CLI-91-12, 34 NRC 149 (1991).

The factual support necessary to show that a genuine dispute exists at the contention stage need not be in formal evidentiary form, and it need not be as strong as that necessary to withstand a summary disposition motion. All that is required is a minimal showing that material facts are in dispute, thereby demonstrating that an inquiry in depth is appropriate. Gulf States Utilities Co. (River Bend Station, Unit 1), CLI-94-10, 40 NRC 43, 51 (1994) (citing Final Rule, Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,171 (Aug. 11, 1989), quoting Connecticut Bankers Association v. Board of Governors, 627 F.2d 245 (D.C. Cir. 1980).

Above all, the ASLB may not turn the threshold admissibility requirements into a fortress to deny intervention. Power Authority of the State of New York, et al. (James FitzPatrick Nuclear Power Plant; Indian Point Nuclear Generating Unit 3), CLI-00-22, 52 NRC 266, 295 13

(2000). But thats what happened here. The Board reconciled unproven and unconceded conflicts of fact and law. The ASLB leapt over discovery, hurtled past motion practice and scrambled to accept proofs that werent proven, trying the merits in an efficient denial of due process that began and ended at the very preliminary stage of mere contention pleading.

The ASLB adjudged it irrelevant to know to any certainty that the Uranium metal from the new line at NFS will be used in nuclear weapons, then used that irrelevance to declare investigation of nuclear weapons impacts to be at an end. Finally, the Board, using circular reasoning, adjudged that because 10 C.F.R. Part 70 doesnt cover nuclear weapons facilities, no weapons proliferation analysis is required.

The ASLB sidestepped the considerable prima facie evidence posed by ECAN that the new product line at NFS will be part of the national nuclear weapons program:

The new product line will duplicate a decades-old Uranium refinement line at the DOEs Y-12 facility which undeniably has produced thermonuclear weapons material and is meant to serve as a backup in the event the Y-12 line is not functioning.

The National Nuclear Security Administration (NNSA) intends to award BWX Technologies subsidiary Nuclear Fuel Services a sole-source contract to purify highly enriched uranium and convert it into metal for nuclear weapons programs.9 BWX Technologies Nuclear Fuel Services, Erwin, Tenn., will begin producing purified uranium metal for nuclear weapons under a sole-source award announced Wednesday by the National Nuclear Security Administration (NNSA).10 The NFS contract to continue this work allows for a steady supply for the Department of Defense, including its stockpile requirements for nuclear weapons material.11 12 9

https://www.exchangemonitor.com/nnsa-looks-bwxt-subsidiary-hedge-heu-shortfall/

10 https://www.defensedaily.com/nuclear-fuel-services-to-start-weapons-uranium-work-under-sole-source

-nnsa-contract/nuclear-modernization/

11 https://m.usw.org/news/media-center/articles/2021/nuclear-fuel-services-to-gain-more-jobs 12 ECAN Petition at 10.

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The Y-12 facility currently recycles and then purifies highly-enriched uranium for use in canned subassemblies in Y-12s Building 9212, which dates to the 1940s Manhattan Project.13 The purified HEU used in canned subassemblies14 describes secondaries, which are weapons material containers within nuclear weapons. Defense Daily reported, in connection with developing the HEU purification line at NFS, that the NNSA needs purified highly enriched uranium to make secondary stages for refurbished nuclear warheads and bombs. In the 2020s, the agency will be working on four, possibly five, nuclear-weapons refurbs affecting land-, sea-, and air-based weapons.15 Objections by City of Oak Ridge officials that the NFS facility will not have weapons HEU safeguards and security measures as are present at Y-12 in Oak Ridge are very telling. NRC safeguards cover NFS, while DOE/NNSA regulations cover the Y-12 plant. Oak Ridges mayor notes that safety and security will change from NNSA to the Nuclear Regulatory Commission. I continue to state that NNSAs push to move the work outside the Oak Ridge region is extremely concerning.16 An Oak Ridge city councilwoman who is also a retired Oak Ridge National Laboratory environmental scientist says, By transferring this work to a private-sector facility in a different city, NNSA may hope to be able to pass off some of its responsibility for safeguarding its weapons-grade uranium to a third party, and perhaps also escape the level of safety-related scrutiny that its activities at Y-12 receive from the public and from the Defense Nuclear Facilities Safety Board.17 NFS bad faith denial that the plant will be refining HEU for thermonuclear weapons, 18 in combination with the ASLBs adjudication of the irrelevance of such knowledge to the license amendment, obscures the obvious fact that a significant environmental change will accrue 13 Id.

14 Id.

15 Defense Daily, Nuclear Fuel Services Gets $57M NNSA Contract to Prep for Weapons Uranium Work in Tennessee, 03/04/2021, https://www.defensedaily.com/nuclear-fuel-services-gets-57m-nnsa-contract-prep-weapons-uranium-work

-tennessee/nuclear-modernization/

16 Oak Ridger, NFS awarded $57.5M contract; city opposes, 03/01/2021, https://www.oakridger.com/story/news/2021/03/01/nfs-awarded-57-5-m-contract-city-opposes/6879305002/

17 Id.(Emphasis added).

18 NFS castigated ECAN in its Answer, flatly denying that there will be any weapons material made, processed or handled at the Erwin plant:

To be absolutely clear, the LAR does not seek approval to conduct activities related to nuclear weapons. As noted in the LAR, NFS is a manufacturer and processor of specialty nuclear fuels. Indeed, Nuclear Fuel Services is the name of the licensee entity. And, as further explained in the SAER, [t]he primary licensed activity is the production of nuclear fuel for the United States Navy. To the extent Petitioner claims or believes otherwise, it is simply mistaken.

NFS Answer at 10 (footnotes omitted) (emphasis in original).

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from the nuclear weapons program. This is not merely a legal mistake. The denial of the public's right to know that NFS will contribute to nuclear bombs also denies the publics right to know that Erwin will be upgraded as a target for espionage or attack (which is the case with Y-12).

Despite this consequential product line for NFS, the City of Erwin will not have the benefit of an emergency plan like the one maintained for the people of Oak Ridge.19 NFSs failure to acknowledge its performance of nuclear weapons work under the new DOE contract also impedes a proper assessment of the potential environmental, socioeconomic and environmental impacts of the LAR application. Id. False statements about the purpose and implications of the new product line make it difficult for the public to understand the alternatives to this proposed project. That is particularly important here, because the alternative to installing the new product line at NFS is ostensibly limited to the no action alternative. ECAN suggests that duplicating the refining line at NFS, when the same process remains fully available during construction of an upgraded line at Y-12, renders the NFS project redundant and arguably unneeded. The lack of honest recognition that the new product line is relevant to U.S. nuclear weapons, while the identical HEU purification line at the Y-12 facility is unquestionably for weapons, constitutes a material deficiency in the NRCs assessment of the license amendment request.

When it takes NEPAs required "hard look" at a proposed project's effects, the NRC may not rely on incorrect assumptions or data in an EIS. The NRC must, instead, insure the professional integrity, including scientific integrity, of the discussions and analyses in environmental impact statements. 40 C.F.R. § 1502.23.20 NEPA requires up-front disclosures 19 https://www.y12.doe.gov/about/emergency-public-information 20 40 C.F.R. § 1502.23 states in part: Agencies shall ensure the professional integrity, including scientific integrity, of the discussions and analyses in environmental documents. Agencies shall make use of reliable existing data and resources. Agencies may make use of any reliable data sources, such as remotely gathered information or statistical models. They shall identify any methodologies used and shall make explicit reference to the scientific and other sources relied upon for conclusions in the statement.

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of relevant shortcomings in the data or models, and withholding such information violates the statute. Lands Council v. Powell, 395 F.3d 1019, 1032 (9th Cir. 2005); see also Animal Def.

Council v. Hodel, 840 F.2d 1432, 1439 (9th Cir. 1988) (Where the information in the initial EIS was so incomplete or misleading that the decision maker and the public could not make an informed comparison of the alternatives, revision of an EIS may be necessary to provide a reasonable, good faith, and objective presentation of the subjects required by NEPA.); also, see Save the Peaks Coalition v. U.S. Forest Serv., 669 F.3d 1025, 1037-38 (9th Cir. 2015) (agencies have a duty to ensure the scientific integrity of the [EISs] discussion and analysis); League of Wilderness Defenders-Blue Mountains Biodiversity Project v. U.S. Forest Serv., 689 F.3d 1060, 1073-75 (9th Cir. 2012) (an agency must ensure the scientific integrity of the discussions and analyses in an EIS). Downplaying the relevance of candidly disclosing the purposes of the new product line inhibits investigation of the possible risks to public health and the environment, confuses understanding of alternatives and obscures whether there is genuine need for the new product line.

2. The Too-Big-To-Analyze Problem Of Weapons Proliferation The ASLB further held that because [nuclear] nonproliferation concerns span a host of factors far removed from the licensing action at issue, potential effects of the facility on nonproliferation policies and programs are speculative, and far afield from our decision whether to license the facility, and concern achieving goals that depend on independent future actions by numerous third parties, including the President, Congress, and officials of other nations.

Memorandum and Order, LBP-23-02 at 21, quoting Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-05-28, 62 NRC 721, 724 (2005).

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What the ASLB and the Commission have promoted by this juridical policy is segmentation, which violates NEPA. NFSs part in the nuclear weapons supply chain is obfuscated and there is no big-picture understanding nor accountability for the sprawling, trillion-dollar weapons enterprise.

Proper scoping of a project under NEPA is required to prevent agencies from dividing one project into multiple individual actions each of which individually has an insignificant environmental impact, but which collectively have a substantial impact. NRDC v. Hodel, 865 F.2d 288, 297-98 (D.C. Cir. 1988). The courts employ a four-factor test to determine whether improper segmentation has occurred. These factors include whether the alleged segment: (1) has logical termini; (2) has substantial independent utility; (3) does not foreclose the opportunity to consider alternatives; and (4) does not irretrievably commit federal funds for closely related projects. Piedmont Heights Civic Club, Inc. v. Moreland, 637 F.2d 430 (5th Cir. 1981); Swain v.

Brinegar, 542 F.2d 364 (7th Cir. 1976). The ascertainment of whether a project has independent utility is the primary focus and the key factor in determining whether segmentation has occurred.

The U.S. nuclear weapons program is a massive industrial effort involving multiple installations and processes, and it is governed by longstanding, defined objectives which are established between the Executive and Legislative branches of government. For example, the Y-12 facility produces weapons material according to plans, timetables and industrial traffic management, but the production is set by the NNSA and Congress. Likewise, NFS will produce material for thermonuclear bombs according to the dictates of the organized industrial activity set by Congress and the Secretary of Energy. The collective actions, alternatives, and impacts that are connected should be discussed in the same environmental impact statement if they: (i)

Automatically trigger other actions which may require environmental impact statements; (ii) 18

Cannot or will not proceed unless other actions are taken previously or simultaneously; and (iii)

Are interdependent parts of a larger action and depend on the larger action for their justification.

40 C.F.R. § 1508.25(a)(1). A project has independent utility if it would be constructed absent the construction of other projects in the continuum. Portions of a multi-phase project that depend upon other phases of the project do not have independent utility. Simply put, [w]hen the segmented project has no independent justification, no life of its own, or is simply illogical when viewed in isolation, the segmentation will be held invalid. Macht v. Skinner, 715 F. Supp. 1131, 1135 (D.D.C. 1989).

Locating the HEU refinement and purification project at NFS would comprise one link in an industrial supply chain with the aim of producing bombs for making war. HEU refinement at NFS depends on other federal facilities or contractors to shape the NFS Uranium metal into components of thermonuclear bombs. The refinement process proposed for NFS is not independently justifiable. It is illogical when considered in isolation.

ECAN maintains that NEPA requires a proliferation assessment that identifies the NFS projects place in the weapons material extraction, processing and manufacturing continuum, and requires a frank assessment of the NFS product lines contribution to the overall inventory of weapons-usable Uranium and weapons-building.

The U.S.nuclear weapons program may be unlawful under at least two international treaties. For the U.S. public to be properly informed of the scale and legal implications of the weapons material production at NFS, the whole federal weapons continuum and NFSs location in it must be disclosed. The Licensing Boards assertion that Commission policies say the nuclear weapons undertaking is too large and remote for analysis is at odds with NEPAs disclosure requirements. The ASLBs insistence that the metals end use is not a relevant factor 19

for the purpose of determining whether a proliferation impacts analysis is required under the AEA or NEPA is a fallacy which must not be allowed to stand.

C. The ASLB Improperly Rejected Contention B The ASLB accuses ECAN of failing to account for critical facts set forth in the supplemental ER, namely, that ECAN supposedly doesnt dispute[] the need to develop the U-Metal process to create a separate process of converting isotopes to metal, as well as creating redundant capacity if issues arise with the new electrorefining process at the Y-12 facility.

Memorandum Opinion, LBP-23-02 at 32.

But those critical facts were not in the NFS Supplemental ER. To repudiate Contention B, the Licensing Board seized upon, not facts, but instead, mere representations of NFS counsel made for only the first time at the December 12, 2022 oral argument on contention admissibility.

It is beyond cavil that statements of counsel do not have evidentiary stature, yet the ASLB relied on the representations of NFS attorney at the hearing to create a basis to deny admissibility of Contention B.

The lawful way to have proceeded should have been to require NFS to amend, in writing, the Environmental Report and to extend to ECAN an appropriate opportunity to reframe Contention B. Instead, the ASLB proceeded, once again, to adjudicate Contention B on its merits, based on inadmissible statements of counsel. But that did not happen; Contention B was summarily dismissed.

Contrary to the Licensing Boards position, ECAN correctly identified NFSs anticipated construction timing for the new product line, along with the fact that the NNSA intended to rely on the existing Y-12 line until the technologically different new line was finished there:

The Purpose and Need Statement was written in November 2021 and refers to a need to bridge a projected interruption in the purification of HEU metal at the Y-12 plant 20

in Oak Ridge, Tennessee. That interruption will be caused by the replacement of equipment at Y-12 and installation of new electrorefining capability there by 2023 at the earliest and will not be capable of converting oxides to metal until completion of a separate future project. This Petition is being written in late October 2022, two months from January 1, 2023. Without any record information on the status of the equipment updating and replacement project at Y-12, it is possible that most of the anticipated HEU purification interruption at Y-12 has passed and that implementation of NNSAs March 2021 plan for a bridging strategy at NFS will be a waste of time, resources and taxpayer monies. According to its Fiscal Year 2022 Report to Congress in March 2022, "DOE/NNSA will perform its enriched uranium metal purification in Building 9215 using the electro refining process, which will come online in the 2023 timeframe. This report, produced a full year after the announcement of the $57.5 million contract between NNSA and NFS, further states that the Uranium Modernization program will continue to fund the purification of metal in Building 9212 until the electrorefining process is fully operational, at which point the hazardous wet chemistry, conversion, and reduction operations in Building 9212 will be shut down.

ECANs Amended Petition at 15-16 (footnotes omitted).

ECAN manifested its opposition to the NFS project in Contention A, where the group demanded a weapons proliferation assessment to disclose and justify the redundancy of an existing Y-12 refinement line and a redundant and less quality-regulated product line at NFS.

But ECAN has no burden to show that it disputes the need for a redundant refinement line at NFS. ECANs point was that the no-build alternative as postulated by NFS did not adequately expose the sheer, unjustified redundancy of the new NFS line. The Environmental Report did not adequately show that Y-12s continued operation of the old line throughout the time it constructs the new Y-12 technology will absolutely suffice to provide refined HEU bomb material until the new Y-12 line is fully operational.

If anything, ECAN was far too generous in tolerating the flimsy cover story advanced by NFS in the Supplemental ER. There, NFS projects a completion date of 2024 for its new line.

But its lawyer broke the news at the hearing that the NFS line would instead not be completed until 2026. So the vaunted availability of the NFS line to take up the slack for the new 21

production process at Y-12 is even further in the future, and it will be for a shorter length of time than first claimed by NFS. NFS effectively proved at oral argument that its project is unjustified.

That the ASLB allowed NFS to have its lawyers proffer a few minutes palaver to cure its inadequate rationale for the new line is legally unsupportable. ECAN has demanded throughout this proceeding for the continued, uninterrupted operation of the refinement line at Y-12 to be considered as a bona fide alternative to the NFS project. The indefinite continuation of the old refinement operations at Y-12 undermines any justification for expenditure of millions of public dollars to build redundancy at NFS.

D. The ASLB Erroneously Rejected Contention C ECANs Contention C demonstrated that NFS has a history of chemical and radioactive contamination from its operation. Therefore, the ER submitted by NFS should have conducted a cumulative impacts analysis, but did not, taking into consideration this history of contamination.

Contention C was therefore a contention of omission as to a cumulative impacts analysis.

The ASLB claimed to address 4 aspects of ECANs Contention C: (1) radiological contamination, (2) PFAS groundwater contamination, (3) sinkholes and groundwater plumes, and (4) air emissions. The ASLB decision claims that ECANs issues were addressed in the ER and its contention was not supported by sufficient evidence.

1. Radiological Contamination ECAN documented the radiological contamination of groundwater at the NFS facility through the declaration of Dr. Michael Ketterer. Dr. Ketterer stated that he has sampled water, soil, sediment, and mollusks in and around the Nolichucky River near the NFS facility beginning in 2010. Dr. Ketterer concluded that there are multiple pathways and releases of enriched uranium and plutonium from NFS operations. Based on this evidence and noting the long 22

half-lives of uranium, plutonium, and other radioisotopes, ECAN asserted that the ER must discuss the cumulative impacts for radioactive contamination.

Both an Environmental Assessment and Environmental Impact Statement must examine the actions direct, indirect and cumulative effects. 42 U.S.C. § 4332(C)(iii); 40 C.F.R. §§ 1502.16, 1508.7, 1508.8; see also Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976) (EA must have taken a hard look at the environmental consequences of the proposed action, including its direct, indirect, and cumulative effects); see also EarthReports, Inc. v. FERC, 828 F.3d 949, 953 (D.C. Cir. 2016); also, 40 C.F.R. §§ 1508.9, 1508.25(c). See, e.g., S. Utah Wilderness All. v. Norton, 326 F. Supp. 2d 102, 119-20 (D.D.C. 2004) (allowing BLM to conduct an EA instead of an EIS because [t]he determination of whether BLM should have prepared an EIS turns largely on whether the EA was adequately conducted and properly took cumulative impacts into account and the BLM had dedicated an entire chapter in the EA to cumulative impacts analysis); Native Village of Point Hope v. Salazar, 730 F. Supp. 2d 1009, 1012 (D.

Alaska 2010) (deferring to the agencys informed discretion in approving an oil and gas lease when the agency devoted 76 pages of its EIS to a cumulative impacts assessment).

When no cumulative effects analysis is forthcoming, courts have held agency decisions to be arbitrary and capricious. See Sierra Club v. Mainella, 459 F. Supp. 2d 76, 107-08 (D.D.C.

2006) (holding the National Park Services decision to allow oil and gas drilling operations on NPS lands was arbitrary and capricious because the Service had failed to consider the cumulative impacts of the drilling operations); Wyo. Outdoor Council v. U.S. Army Corps of Engrs, 351 F. Supp. 2d 1232, 1237 (D. Wyo. 2005) (vacating permit allowing the release of coalbed methane water into above ground reservoirs because the Army Corps had failed to consider cumulative impacts); Te-Moak Tribe v. U.S. Dept of the Interior, 608 F.3d 592, 601 (9th 23

Cir. 2010) (concluding that the BLMs cumulative impact analysis of proposed gold mining operations on public lands was insufficient). Cumulative environmental effects account for the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Id. § 1508.7.

The ASLB rejected the radioactive contamination aspect of Contention C as not relating to the current license amendment application, but rather, focused on past contamination. But cumulative impacts include past actions. And there is nothing in the ER that indicates that NFS has taken any action to prevent such actions in the future. Therefore, future contamination is reasonably foreseeable, especially with a new untested uranium enrichment process being undertaken.

The ASLB decision diverted its attention away from the cumulative impacts question to attempt to prove that the ER did address radioactive contamination. First, the ASLB noted that ECAN referred to a comparison table of radiological contamination (ASLB decision at 45). But that leaves out the context of ECANs statement. The full paragraph is:

The Supplemental ER offers a comparison table of radiological contamination of the Nolichucky upstream and downstream of the NFS wastewater outfall. While NFS is careful not to state in the text that the Erwin plant is decidedly polluting the Nolichucky River with Uranium radioisotopes, it unmistakably is doing so according to its own table.

What NFS fails to admit, analyze and discuss, however, is specifically which Uranium isotopes are being dumped into public waters. Moreover, despite Dr. Ketterers research, NFS provides no mention nor accounting whatsoever for the verified presence of Plutonium emanating from the plant and perching in river bottom sediment scores of miles downstream.

In other words, the ER does not discuss the presence of plutonium or which isotopes of uranium are being dumped into public waters.

The ASLB decision also claims ECAN ignored sources of information other than the ER.

But that runs counter to the ASLBs repeated admonition throughout its decision that it is the ER 24

that must be the focus of ECANs contentions. The ASLB refers to a 2011 environmental assessment and NFS June 2022 RAI responses. But those documents are not referred to or even mentioned in the ER. ECAN is only required to identify places in the ER that are in dispute. The extraneous documents relied on by the ASLB are beyond the scope of a challenge to the ER.

2. PFAS Groundwater Contamination Dr. Ketterers declaration establishes that there is a likelihood of PFAS chemicals in the water under or near the NFS facility. But there is no mention of that in the ER. The ER is required to have an accurate and thorough description of the affected environment. NUREG-1748, Environmental Review Guidance for Licensing Actions Associated With NMSS Programs,
p. 6-5.21 Specifically NUREG-1748 requires The applicant/licensee should describe site-specific and regional data on the physical and hydrological characteristics of ground and surface water in sufficient detail to provide the basic data for the evaluation of impacts on water bodies, aquifers, aquatic ecosystems, and social and economic structures of the area. In addition, the ER must contain:

Description of preexisting environmental conditions and their effects on subsurface and surface water quality (e.g., water bodies at or near the site that do not meet established water quality standards) and quantity; Description of past, current, and future pollutant sources with discharges to water, including locations relative to the site and the affected water bodies, and the magnitude and nature of the pollutant discharges, including spatial and temporal variations.

Id. at p. 6-8. The ER in this case fails to contain this information.

And Dr. Ketterer clearly states that based on his investigations around the NFS facility, PFAS chemicals are likely present and would be expected to be following the same water transport pathways into the Nolichucky River as the enriched uranium. This is more than enough to establish contention admissibility. In Vermont Yankee Nuclear Power Corp. v. NRDC, 435 21 ADAMS No. ML032450279.

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U.S., 519, 554 (1978), the U.S. Supreme Court affirmed the NRC in finding that the proper standard to apply required intervenors to simply make a showing sufficient to require reasonable minds to inquire further, a burden the NRC found to be significantly less than that of making a prima facie case. Dr. Ketterers declaration is certainly sufficient to require reasonable minds to inquire further. The ASLB has, in effect, required ECAN to actually prove its case at the contention admissibility stage - another example of misusing the contention pleading stage to render what is effectively a weighing of evidence and adjudication on the merits.

3. Sinkholes and Groundwater Plumes In its explanation of Contention C, ECAN demonstrated that plumes of contaminants are known to exist in the groundwater underlying the NFS facility (ECAN Petition at 28-29). The only reference to these plumes in the ER is at page 29 of that document. In that reference NFS claims to be working on remediating the contamination in those plumes, but the ER does not quantify the level of remediation. Just mentioning something in an ER is not sufficient to provide the information required.

Regarding sinkholes, there is no mention of those in the ER. The ASLB referred to a 2011 NFS license renewal proceeding, a FAQ document, and a 2019 NFS Supplemental ER. But none of those documents are relied on, or even mentioned, in the ER at issue in this proceeding.

If petitioners are required to focus only on the ER currently at issue, as the ASLB repeatedly admonished, the applicant and the ASLB cannot rely on documents that are not even mentioned in the ER. It is the applicants obligation to present a complete ER that complies with NEPA.

4. Air Emissions In Contention C, ECAN stated that the ER did not evaluate the impact of increased air emissions resulting from the new process being proposed. A new additional industrial process 26

will obviously increase air emissions. In fact, Section 1.2 of the supplemental ER states that NFS will be constructing a new industrial facility to institute the new process. And there is no indication that any of the current sources of air emissions will be discontinued or reduced.

Therefore, an increase in air emissions is assured and must be addressed in the supplemental ER.

The ASLB took issue with ECANs assertion in Contention C that the air emissions would be doubled as a result of the new process. ECANs assertion was derived from a comparison of the NFS proposal with the existing emissions at the Oak Ridge Y-12 facility. In this regard, it is significant that NFS submitted a revised Supplemental ER in January 2023 that is not referred to in the ASLB decision. That revised Supplemental ER contains a table (Table

18) listing potential gaseous emissions as a result of the new process. That table does not appear in the original Supplemental ER that was the focus of the ASLB decision. But there is no further or updated discussion of the air emission impacts based on this new information.
5. ECAN Is Not Challenging NRC Regulations The ASLB decision repeatedly chastises ECAN for challenging NRCs failure to carry out its NEPA responsibilities. The ASLB claims that ECAN can only challenge the Supplemental ER, implying that NRCs NEPA responsibilities apply only to the preparation of an EA or EIS.

But that position ignores the fact that the NRC regulations force its NEPA responsibilities, in the first instance, into the procedure under 10 C.F.R. § 2.309, when the only NEPA document is the Supplemental ER. The NRC cannot force intervenors to exercise the right of public participation in a proceeding where a recognized NEPA document has not even been prepared, but then absolve itself of responsibility under NEPA because a NEPA document has not been prepared.

That said, ECAN emphasizes that it is not challenging the NRC regulations. It is challenging the NRCs and the ASLBs interpretation of the regulations in a way that would 27

absolve NRC of its NEPA responsibilities. The NRC regulations, 10 C.F.R. §§ 51.45 and 51.60, and guidance, NUREG-1748, set out how ERs should be prepared and the contents thereof. So the NRC has responsibility to ensure that the regulations and guidance are followed. The NRCs failure to do that is the essence of ECANs challenge.

E. The ASLB Erroneously Rejected Contention D ECAN maintains that the NRCs fuel cycle facility regulations are inadequate for the protection of public health, safety, and security because they lack stringent quality assurance requirements. The ASLB rejected the contention as an improper challenge to the validity or sufficiency of a Commission regulation. Memorandum Opinion at 54.

This LAR poses a very unique regulatory problem, in that NFS intends to mirror an industrial process line operating at the DOEs Y-12 facility in Oak Ridge, Tennessee. The Y-12 line is subject to DOEs Quality Assurance requirements, which are more comprehensive than the NRC QA regulations that will apply to the NFS line. At Y-12, federal government contractors are contractually bound to have Quality Assurance management, as well as nuclear quality control engineers with the technical expertise who report to them, to protect worker health and safety, public health and safety, and to ensure the security of nuclear weapons material.

Moreover, Contractors conducting activities, including providing items or services, that affect, or may affect, the nuclear safety of DOE nuclear facilities must conduct work in accordance with the Quality Assurance criteria in [10 C.F.R.] § 830.122. 22 22 10 C.F.R. § 830.121.

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NFS has a lengthy history of safety violations over the past two decades. NFS is the only company in the nuclear industry to be repeatedly called to the annual Agency Action Review Meetings (AARM) convened at the Nuclear Regulatory Commissions chambers.23 There have been numerous known safety violations and unresolved items since NFSs license renewal in 2012.24 There have been times where accidents and aftermaths at NFS have been serious enough to be listed in NRCs Report to Congress on Abnormal Occurrences. 25 NFS has displayed repeated Nuclear Criticality Safety (NCS) deficiencies.26 Of concern is that in NFS June 30, 2022 Request for Additional Information (RAI) response to the NRC Staff, NFS made a materially false representation to the NRC when it claimed that its downblending operations . . . ha[ve] been safely performed by NFS for over 20 years (a routinely renewed contract).27 NFS seems to have forgotten an extremely serious 2006 process failure with significant quality implications. NFS is required to have Quality Assurance controls only for the shipment of special nuclear material. But the 2006 37-liter uranyl nitrate 23 For example, see 2003 - Discussed at AARM - ML031250269; 2007 - Attended AARM -

ML080580192; 2008 - Discussed at AARM - ML080580192; 2009 - Attended AARM - ML090550079; 2011 - Attended AARM - ML111260502 .

24 NRC Inspection Reports 2012-2022:

2012: ML12030A226, ML12072A191, ML12122A186 2013: ML13011A159, ML13030A347, ML13100A098, ML13190A150, ML13305A075 2014: ML14028A071, ML14212A026, ML14241A553 2015: ML15027A241, ML16107A039, ML15209A728, ML15264A785, ML15296A160, ML15309A525 and related ML15296A385 2016: ML16120A089, ML16341A885 2017: ML17045A037, ML17173A142, ML17290A763, ML18002A363 2018: ML18005A018, ML181909A306, ML19178A282, ML18236A554, ML18305A005 2019: ML19262D347 2020: "No violations of more than minor significance" 2021: ML21118B020, ML21176A156, ML21225A074, ML22027A552, ML21272A257, ML21287A667, ML21293A113 2022: ML22178A025, ML22213A046, ML22223A213 25 (1) NUREG-0900 - Vol 29, Pages 1 & 2 - Spill of 35 liters of HEU at NFS, March 6, 2006; CAUSE:

Failure to maintain configuration control of facility equipment and failure to comply with procedures.

(2) NUREG-0900 - Vol. 33, Pages C-4 & C-5, Adverse Chemical Event at NFS, Oct. 3, 2009, Civil Penalty of $140,000, Severity Level III Violation.

26 See NRC NCS Inspection 70-143/2013-201, (ML13100A098).

27 NFS RAI Responses, June 30, 2022, ML22193A034, p. 10 of 43.

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spill at NFS occurred in one of the buildings that will be used in the bomb-Uranium purification process. In 2006, two criticality accidents were narrowly avoided there.

The 2006 spill occurred at NFS under an approved LAR. The Blended Low Enriched Uranium (BLEU) facility at NFS involved three LARs, including one for the BLEU Processing Facility (BPF) itself. Following the preparation of Environmental Reports and Environmental Assessments, all three license amendments were found to have no significant environmental impacts by the NRC. But in the 2006 HEU spill, enough fissile solution (35 liters) pooled at two locations to have caused criticality accidents, and no controls were in place to prevent accumulation of a critical level of HEU at either collection point. As a result, NFS was cited for multiple violations.28 The root causes of the spill of uranyl nitrate solution included inadequate configuration control, change analysis and design requirements. The configuration control program lacked means of ensuring that unapproved systems were isolated from operational systems, and that configuration changes, such as not implementing the operational requirements (e.g., procedures, IROFS) of a system, received a safety review (APV 70-143/2006-006-06).

Design requirements also lacked criteria to prevent misdirected flow.

By severely distorting its historical safety record during the pending license amendment Proceeding, NFS has affirmed its corporate culture of poor Quality Assurance management.

ECANs quality contention is really about NFS as a serial violator of even the most basic requirements for safety and security.

28 The violations included: Failure to verify proper installation of the tray dissolver filter enclosure drains prior to use of the system with fissile material (APV 70-143/2006-006-02); failure to meet the performance requirements of 10 C.F.R. 70.61(d) for accident sequences related to handling fissile material in the tray dissolver system (APV 70-143/2006-006-03); failure to meet the performance requirements of 10 C.F.R. 70.61(d) for accident sequences related to fissile solution accumulation on the solvent extraction room floor (APV 70-143/2006-006-04); failure to assume in NCS analysis for the tray dissolver system that fissile solution could be misdirected from the solvent extraction feed transfer line (APV 70-143/2006-006-05).

30

Under the Atomic Energy Act, the Commission may consider a licensees character or integrity in deciding whether to continue or revoke its operating license. Metro. Edison Co.

(Three Mile Island Nuclear Station, Unit 1), ALAB-772, 19 NRC 1193, 1207 (1984), revd in part on other grounds, CLI-85-2, 21 NRC 282 (1985). A licensees ethics and technical proficiency are both legitimate areas of inquiry insofar as consideration of the licensees overall management competence is at issue. Three Mile Island, ALAB-772, 19 NRC at 1227; Piping Specialists, Inc. (Kansas City, Missouri), LBP-92-25, 36 NRC 156, 153 (1992). Candor is an especially important element of management character because of the Commissions heavy reliance on an applicant or licensee to provide accurate and timely information about its facility.

La. Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-812, 22 NRC 5, 48, 51 (1985), citing Three Mile Island, ALAB-772, 19 NRC at 1208; Piping Specialists, LBP-92-25, 36 NRC at 156.

A significant measure of the overall competence and character of an applicant or licensee is the extent to which the company management is willing to implement its quality assurance program. Waterford, ALAB-812, 22 NRC at 15 n.5, citing Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-106, 6 AEC 182, 184 (1973). A Board may properly consider a companys efforts to remedy any construction and related quality assurance deficiencies.

Ignoring such remedial efforts would discourage companies from promptly undertaking such corrective measures. Waterford, ALAB-812, 22 NRC at 15, 53 n.64, citing Houston Lighting &

Power Co. (South Texas Project, Units 1 & 2), ALAB-799, 21 NRC 360, 371-74 (1985).

False statements, if proved, could signify lack of management character sufficient to preclude an award of an operating license, at least as long as responsible individuals retained any responsibilities for the project. Consumers Power Co. (Midland Plant, Units 1 & 2), LBP-84-20, 31

19 NRC 1285, 1297 (1984), citing South Texas, LBP-84-13, 19 NRC at 674-75, and Consumers Power Co. (Midland Plant, Units 1 & 2), CLI-83-2, 17 NRC 69, 70 (1983).

The ASLB shirked its responsibility by avoiding the core question here: Should a facility that under other circumstances would be required by DOE regulations to have a process Quality Assurance program be disqualified from receiving a license to pursue a quality-deficient, inherently-dangerous radiological process that will be addressed only by the NRCs weaker QA regulations?

The Commission should reverse the ASLB and remand Contention D for trial.

IV. CONCLUSION The Atomic Safety and Licensing Board declined to require Nuclear Fuel Services to be fundamentally truthful that the new product line for which license amendment is sought is part of the U.S. thermonuclear weapons program. This essential fact, which the ASLB quickly labeled irrelevant to an understanding of the project, is, to the contrary, key to informing the public under NEPA of the potential additional environmental negatives they might expect from an inherently-dangerous new industrial process in Erwin, Tennessee. The ASLB conducted its assessment of the admissibility of ECANs contentions in a superficial and legally inadequate manner.

WHEREFORE, Erwin Citizens Awareness Network prays the Commission reverse and remand ECANs four contentions for adjudication on the merits.

Sincerely,

/s/ Terry J. Lodge Terry J. Lodge, Esq.

316 N. Michigan St., Ste. 520 Toledo, OH 43604-5627 (419) 205-7084 tjlodge50@yahoo.com Counsel for Erwin Citizen Awareness Network 32

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I hereby certify that on this 24th day of February, 2023, the foregoing Notice of Appeal Pursuant to 10 C.F.R. § 2.311 and Brief in Support of Appeal were deposited by me in the Electronic Information Exchange (the NRCs E-Filing System) in the above-captioned proceeding for automated distribution to all registered counsel and parties.

/s/ Terry J. Lodge Terry J. Lodge, Esq.

Counsel for ECAN 33

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