ML23278A060
| ML23278A060 | |
| Person / Time | |
|---|---|
| Site: | Erwin |
| Issue date: | 10/05/2023 |
| From: | Brooke Clark NRC/SECY |
| To: | Erwin Citizens Awareness Network, Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| ASLBP 23-976-01-LA-BD02, RAS 56814, 70-143-LA, CLI-23-03 | |
| Download: ML23278A060 (25) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
Christopher T. Hanson, Chair David A. Wright Annie Caputo Bradley R. Crowell In the Matter of NUCLEAR FUEL SERVICES, INC. Docket No. --LA (License Amendment Application)
CLI--
MEMORANDUM AND ORDER Erwin Citizens Awareness Network, Inc. (ECAN) has appealed the Atomic Safety and Licensing Boards decision denying its petition to intervene and hearing request.1 In its petition to intervene, ECAN proposed four contentions related to the request of Nuclear Fuel Services, Inc. (NFS) to amend the existing license for its Erwin, Tennessee nuclear fuel fabrication facility.
For the reasons detailed below, we affirm the Boards decision.
BACKGROUND NFS requested an amendment to its existing C.F.R. Part special nuclear materials license in November .2 If granted, the amendment would allow NFS to provide uranium 1 Notice of Appeal of LBP-- by Petitioner Erwin Citizens Awareness Network, Inc. and Brief in Support of Appeal (Feb. , ) (ECAN Appeal).
2 Letter from Tim Knowles, NFS, to NRC Document Control Desk (Nov. , ) (ADAMS accession no. MLA) (License Amendment Application).
purification and conversion services at its Erwin, Tennessee facility.3 After entering a contract with the U.S. Department of Energys National Nuclear Security Administration (NNSA) for the U-Metal Project, NFS submitted this license amendment request. The contract is intended to bridge the gap between the shutdown of the legacy uranium processing equipment at the NNSA Y- National Security Complex in Oak Ridge, Tennessee, and the transition to a new facility at Y- that will use new electrorefining technology to purify high-enriched uranium metal.4 In support of the license amendment request, NFS submitted a supplemental environmental report (Supplemental ER) pursuant to C.F.R. § .(a).5 Because NFS had previously prepared an environmental report for its license renewal application, its Supplemental ER for this request evaluates the environmental impacts associated with the addition of the U-Metal Project and documents changes to key information between and this submittal.6 In response to a notice of hearing opportunity published in the Federal Register, ECAN filed a petition proffering four contentions challenging various aspects of the NFS license 3 Id. at (unnumbered).
4 Id. at - (unnumbered).
5 In a February , , response, NFS provided a version of the supplemental ER suitable for public release. See Letter from Tim Knowles, NFS, to NRC Document Control Desk (Feb. ,
) (MLB), Encl. (MLB) (Supplemental ER). That publicly available version of the Supplemental ER is the version referenced in this decision.
6 License Amendment Application at (unnumbered); see also C.F.R. § .(a) (If the application is for an amendment to . . . a license . . . for which the applicant has previously submitted an environmental report, the supplement to applicants environmental report may be limited to incorporating by reference, updating or supplementing the information previously submitted to reflect any significant environmental change, including any significant environmental change resulting from operational experience or a change in operations or proposed decommissioning activities.).
amendment request.7 Both the NRC Staff and NFS argued that none of ECANs contentions were admissible.8 The Board found that ECAN established its representational standing in the proceeding but did not find any of its four contentions admissible.9 DISCUSSION ECAN has appealed the Boards decision under C.F.R. § .(c), which allows a petitioner whose hearing request has been wholly denied to appeal as of right. To be admitted for hearing, a proposed contention must set forth with particularity the matters to be raised, be within the scope of the hearing, be material to the findings the agency must make in taking the requested action, be factually supported, and show that a genuine dispute exists with the application.10 We will defer to the Boards rulings on contention admissibility unless an appeal demonstrates an error of law or abuse of discretion.11 As discussed below, we find no Board error or abuse of discretion and affirm the Boards decision.
A. Contention A: Nuclear Weapons Proliferation Assessment In Contention A, ECAN asserted that the new process at NFS will generate purified high-enriched uranium material for inclusion in nuclear weapons.12 ECAN further argued that the U.S. nuclear weapons program is controversial, arguably illegal, and violative of 7 Amended Petition of Erwin Citizens Awareness Network for Leave to Intervene in Nuclear Fuel Services, Inc. License Amendment Proceeding, and Request for a Hearing (Oct. , )
(Petition to Intervene).
8 NRC Staff Answer to Erwin Citizens Awareness Networks Petition to Intervene and Request for Hearing (Nov. , ) (Staff Answer to Petition to Intervene); Nuclear Fuel Services, Inc.s Answer to Erwin Citizens Awareness Networks Hearing Request and Petition for Leave to Intervene (Nov. , ) (NFS Answer to Petition to Intervene).
9 LBP--, NRC , - ().
10 See C.F.R. § .(f)()(i)-(vi).
11 See, e.g., Crow Butte Resources, Inc. (Marsland Expansion Area), CLI--, NRC , -
().
12 LBP--, NRC at (quoting Petition to Intervene at ).
international norms.13 According to ECAN, under the National Environmental Policy Act (NEPA), the NRC is required to investigate, analyze and publicly disclose a nuclear weapons proliferation assessment,14 discussing the impacts and policy implications of the new NFS purification process on the U.S. weapons program and prospects.15 The Board found Contention A inadmissible because it did not fall within the scope of the proceeding or raise a genuine dispute regarding a material issue of law or fact.16 In reaching the conclusion that the contention is outside the scope of the proceeding, the Board applied two Commission decisions concerning enrichment facilities, where we found contentions seeking proliferation assessments under NEPA and the AEA inadmissible.17 In LES, we found the NEPA-based contention beyond the scope of the proceeding because a domestic licensing actions impact on nuclear nonproliferation concerns is speculative and lacks a proximate causal connection to the proposed facility.18 In USEC, we found the safety-based contention to be 13 Id. at - (quoting Petition to Intervene at ).
14 The term nuclear proliferation assessment statement is used in the Atomic Energy Act of
, as amended (AEA), in the context of U.S. agreements for cooperation with a foreign nation under sections and . It does not appear that ECAN wants the NRC to produce this type of statement. Accordingly, the term proliferation assessment as used in this order does not refer to the statement described in sections and of the AEA.
15 LBP--, NRC at (quoting Petition to Intervene at ). ECAN argued that the NRCs responsibility under the AEA to consider whether granting a license would be inimical to the common defense and security of the United States or the health and safety of the public requires the NRCs NEPA analysis to consider the full range of risks to the common defense and security potentially arising from its licensing decision. Id. at (quoting Petition to Intervene at ). The Board found that ECANs contention ultimately was a contention of omission, challenging the failure of the Supplemental ER to include a proliferation analysis. Id.
at . The Board considered whether a proliferation assessment was required under either the AEA or NEPA. Id. at -.
16 Id. at (citing C.F.R. § .(f)()(iii), (vi)).
17 Id. at -.
18 Id. at - (citing Louisiana Energy Services, L.P. (National Enrichment Facility), CLI--,
NRC , ()).
beyond the scope of the proceeding because it raise[d] issues of international policy unrelated to the NRCs licensing criteria.19 The Board also noted that, in response to a comment on a petition for rulemaking, the Commission addressed all types of fuel cycle facilities and stated that proliferation assessments should not be required because existing NRC requirements already address proliferation risks and concerns at all fuel cycle facilities.20 Because these cases and the rulemaking statements indicate that neither the AEA nor NEPA requires the NRC to produce a proliferation assessment in a fuel cycle facility licensing action, the Board found Contention A to be beyond the scope of the proceeding.21 In addition, ECAN disputed NFSs assertion that the facility will not produce nuclear weapons or nuclear weapons material. According to the Board, ECAN did not establish the required genuine material dispute because the end use of the material processed at the NFS facility is not a relevant factor for the purpose of determining whether a proliferation impacts analysis is required under the AEA or NEPA.22 As the Board noted, the fabrication of purified uranium metal at the NFS facility falls within the NRCs Part regulatory framework, and Part s 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.23 The Board applied the 19 Id. at (quoting USEC Inc. (American Centrifuge Plant), CLI--, NRC ,
()).
20 Id. (citing Nuclear Proliferation Assessment in Licensing Process for Enrichment or Reprocessing Facilities, Fed. Reg. ,, , (June , ) (Denial of Petition for Rulemaking) ([T]he existing NRC licensing framework is adequate to address proliferation concerns associated with nuclear fuel cycle facilities by including requirements to prevent the unauthorized disclosure of classified matter and sensitive technologies, and provide physical protection of nuclear equipment and materials.)).
21 LBP--, NRC at -.
22 Id. at .
23 Id.
Commissions previous reasoning to find that neither the AEA nor NEPA mandates preparation of proliferation assessments due to the comprehensiveness of Part and the speculative nature of a proliferation assessment that would be based on information and analyses outside the expertise of the NRC.24 On appeal, ECAN claims that the Board improperly transformed a determination on contention admissibility into a decision on the merits of the contention.25 In particular, ECAN asserts that it is relevant whether the uranium metal that would be produced at NFS would be used in nuclear weapons.26 ECAN faults the Board for using circular reasoning to determine that a weapons proliferation analysis is not required because Part does not cover nuclear weapons facilities.27 ECAN further claims that the failure to undertake a proliferation assessment violates NEPA because it is improper segmentation.28 While ECAN is correct that the contention admissibility criteria do not serve as a fortress to deny intervention, they do serve to frame issues for an evidentiary hearing.29 And while hearings resolve the substantive merits of a contention, the contention admissibility stage is the proper time to examine whether the issue raised should be subject to a hearingin this case, the Board found that the issue was not within the scope of the hearing and did not raise a 24 Id. at -.
25 ECAN Appeal at .
26 Id. at -.
27 Id. at .
28 Id. at .
29 See id. at (quoting Power Authority of the State of New York (James A. FitzPatrick Nuclear Power Plant; Indian Point, Unit ), CLI--, NRC , ()). In adopting the contention standard in section .(f), the Commission stated that the criteria are necessary to ensure that hearings cover only genuine and pertinent issues of concern and that the issues are framed and supported concisely enough at the outset to ensure that the proceedings are effective and focused on real, concrete issues. Changes to Adjudicatory Process, Fed. Reg.
, - (Jan. , ).
genuine material dispute with the applicant.30 ECAN argues that the Boards application of the contention admissibility criteria transformed a preliminary, procedural decision. . . into a summary ruling on the merits.31 We disagree. Even assuming that the material produced at the NFS facility would ultimately be included in nuclear weapons, as ECAN argued, the Board determined that such an end use would still not make ECANs contention fall within the scope of the proceeding or raise a genuine dispute on a material issue with the applicant. The Board laid out its reasoning for this legal determination in its decision. We find that ECAN has not shown that the Board erred in its treatment of Contention A.
With respect to ECANs claims related to the AEA and nonproliferation, we continue to find that our existing regulations fulfill our statutory mandate.32 The AEA grants the NRC broad regulatory latitude to protect public health and safety, common defense, and security in its domestic licensing activities. While the AEA does not prescribe that the NRC explicitly consider nuclear proliferation as a prerequisite to domestic licensing, NRC safety regulations on information security, physical security, and material control adequately address nonproliferation concerns as part of a comprehensive regulatory infrastructure.33 Given the NRCs comprehensive regulatory framework, ongoing oversight, and active inter-agency cooperation, a nuclear nonproliferation assessment is not necessary to ensure the protection of the public health and safety or common defense and security.
Additionally, ECAN raises issues related to the wisdom of the nuclear weapons policy of the United States. The executive and legislative branches of the federal government are 30 See LBP--, NRC at (citing C.F.R. § .(f)()(iii), (vi)).
31 ECAN Appeal at .
32 See Denial of Petition for Rulemaking, Fed. Reg. at ,-.
33 The NRC regulations and the Staffs safety reviews consider issues such as physical security and protection against radiological sabotage, theft, and diversion, which are relevant to nonproliferation. See, e.g., C.F.R. pts. , , and .
responsible for developing national nuclear nonproliferation policies and goals. ECANs claim that [t]he U.S. nuclear weapons program may be unlawful under at least two international treaties is outside of the NRCs authority.34 The implementation of U.S. government policies on nonproliferation is a coordinated effort of the federal agencies, with each contributing according to its area of expertise and assigned responsibilities.35 In this regard, the NRCs responsibility is to issue a license for a nuclear facility to possess nuclear material only if it determines that the health and safety of the public and the common defense and security of the nation will be protected.
With respect to ECANs NEPA claims, a reasonably close causal relationship must exist between the proposed action and a purported environmental effect to compel consideration in the agencys NEPA analysis.36 The action before the agency is a license amendment that would allow NFS to provide uranium purification and conversion services. NFS disputed ECANs claim that the amendment authorizes activities related to nuclear weapons and stated that the primary licensed activity is the production of nuclear fuel for the United States Navy.37 The AEA and NRC regulations prohibit licensees from using special nuclear material to construct nuclear weapons; therefore, the license amendment would not allow NFS to produce a nuclear weapon or a component of a nuclear weapon.38 Whether some of the 34 ECAN Appeal at .
35 See Denial of Petition for Rulemaking, Fed. Reg. at ,.
36 Sierra Club v. FERC, F.d , (D.C. Cir. ) (quoting Dept of Transp. v. Pub.
Citizen, U.S. , ()); see also Metro. Edison Co. v. People Against Nuclear Energy, U.S. , & n. () (stating that courts must draw a manageable line between those causal changes that may make an actor responsible for an effect and those that do not).
37 LBP--, NRC at ; see also Supplemental ER at .
38 AEA § (e)() ([S]pecial nuclear material shall be distributed only on terms, as may be established by rule of the Commission, such that no user will be permitted to construct an
U-metal produced at NFS may be further processed by NNSA at a later date to be used in a nuclear weapon is not within the NRCs scope of authority.39 To the extent that any NEPA analysis is necessary, other federal agencies possess the relevant expertise.40 For this proposed action, there is not a sufficiently close causal relationship between the agency decision and the potential for NFSs new processes to cause an increase in proliferation; in other words, the causal chain under NEPA is too attenuated.41 ECAN further argues that the NRCs failure to perform a proliferation assessment is improper segmentation because 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.42 First, ECAN makes this argument for the first time on appeal.
atomic weapon.); C.F.R. § .(a)() (The licensee shall not use the special nuclear material to construct an atomic weapon or any component of an atomic weapon.).
39 See, e.g., Metro. Edison, U.S. at ; Pub. Citizen, U.S. at .
40 See LBP--, NRC at n. (noting that DOE has prepared an EIS that contains a nonproliferation assessment for NNSA activities conducted at the Y- National Security Complex); Denial of Petition for Rulemaking, Fed. Reg. at , (It would be neither prudent nor useful for the NRC to devote resources in a domestic licensing proceeding to address national policy objectives that are already being addressed by the appropriate Federal agencies with the expertise and mandate to do so.).
41 First, another federal agency would need to determine that U-metal from the NFS facility should be further processed into a nuclear weapon component, at which time a NEPA analysis could be undertaken. Second, counsel for NFS stated that the services to be provided under the proposed license amendment are, essentially, a one-for-one replacement of like-for-like activities [currently being performed at Y-]; that there is no net change in terms of what is being done. The only real change is where its being done. Tr. at . As noted above, DOE has already prepared an EIS that covers the Y- National Security Complex. LBP--,
NRC at n. (citing U.S. Department of Energy, National Nuclear Security Administration, Final Site-Wide Environmental Impact Statement for the Y- National Security Complex, DOE/EIS- (Feb. ) (Y- EIS)). We also note that DOE has prepared an EIS that addresses stockpile stewardship and management programmatically, including an evaluation of proliferation impacts. Y- EIS at - (citing U.S. Department of Energy, National Nuclear Security Administration, Final Programmatic Environmental Impact Statement for Stockpile Stewardship and Management, DOE/EIS- (Sept. )).
42 ECAN Appeal at .
Therefore, we need not consider it.43 Second, ECAN acknowledges but has not addressed the environmental impact statement that DOE has already prepared for Y- site-wide activities, which covers the process that this license amendment would authorize. Therefore, ECAN has not explained why the NRCs consideration of this process as part of a license amendment to transition these same functions to the NFS facility should be considered improper segmentation.44 Finally, to the extent that ECAN would like the NRC to evaluate potential extraterritorial environmental effects of its domestic licensing decision, the NRC is not required to evaluate such impacts under NEPA or its regulations.45 The domestic environmental impacts of proliferation, as discussed above, are too attenuated to necessitate inclusion in a NEPA analysis.
In sum, we find that ECAN does not point to any Board error, and we affirm the Boards determination that Contention A is inadmissible.
B. Contention B: Unduly Restrictive Purpose and Need Statement As background, the NNSA currently conducts both purification and conversion activities at its Y- plant in Oak Ridge, Tennessee.46 The NNSA intends to stop using the aging 43 USEC, CLI--, NRC at .
44 See NFS Answer to Petition to Intervene at n. (citing Petition to Intervene at (citing Y- EIS)). NFS cited to the environmental impact statement that NNSA prepared for the Y-site, which was cited by ECAN in its petition to intervene, and argued that ECANs claim that the potential environmental impacts of U.S. policy related to the nuclear weapons program have not been evaluated under NEPA is factually incorrect.
45 See NRDC v. NRC, F.d , - (D.C. Cir. ) (finding that the NRC need not evaluate environmental impacts felt in foreign nations even when approving exports directly to those nations); C.F.R. § . (These regulations do not apply . . . to any environmental effects which NRCs domestic licensing and related regulatory functions may have upon the environment of foreign nations.).
46 Nuclear Fuel Services, Inc.s Brief in Opposition to Erwin Citizens Awareness Networks Appeal of LBP-- (Mar. , ), at (NFS Opposition to Appeal).
equipment used for these processes in the timeframe and replace the purification equipment with new equipment that will use a new electrorefining technology.47 While the NNSA may replace the legacy conversion equipment in the future, it does not currently have plans to do so.48 In Contention B, ECAN claimed that the purpose and need statement of the Supplemental ER was too narrow and time-limited, which resulted in inadequate consideration of the no-build alternative.49 According to ECAN, the continued functioning of an old purification line at Y- obviates the need for a change at NFS to bridge the projected interruption of high-enriched uranium metal purification.50 The Board ruled that Contention B did not raise a genuine dispute with the application because ECAN did not address critical facts in the Supplemental ER.51 NFS stated that the project is intended 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- facility.52 On appeal, ECAN claims that these critical facts were not in the Supplemental ER but were provided for the first time at oral argument.53 ECAN also argues that [t]he indefinite continuation of the old refinement [purification] operations at 47 Id.
48 Id. at -.
49 Petition to Intervene at .
50 LBP--, NRC at (quoting Petition to Intervene at ).
51 Id. at .
52 Id. (emphasis added) (quoting Tr. at and citing NFS Answer to Petition to Intervene at (quoting Supplemental ER at )).
53 ECAN Appeal at .
Y- undermines any justification for expenditure of millions of public dollars to build redundancy at NFS.54 NFS and the Staff respond by noting that the critical facts ECAN claims were not provided until the oral argument were in the Supplemental ER.55 In addition, ECAN is reiterating arguments it made before the Board, where it argued that the old production process in Building could act as a redundancy until the new process is fully operational.56 But, the Staff notes, the process in Building only relates to the purification of uranium metal and does not include the ability to convert oxides to metal.57 NFS asserts that the purpose and need for the proposed action is two-fold: () to provide a conversion capability when the aging Y-equipment shuts down indefinitely, and () to hedge against the technology risk associated with new purification equipment at Y- that is expected to come online in at the earliest.58 NFS also refutes ECANs assertion that it had no burden to show that it disputes the need for a redundant refinement line at NFS59 by pointing to C.F.R. § .(f)()(vi), which provides that 54 Id. at ; see also id. at - (arguing that the no-build alternative does not adequately account for the fact that the old production process in Building could act as a redundancy until the new process is fully operational).
55 NFS Opposition to Appeal at - (citing Supplemental ER at ); NRC Staff Answer in Opposition to Erwin Citizens Awareness Network, Inc.s Appeal of LBP-- (Mar. , ), at (Staff Opposition to Appeal) (citing Supplemental ER at ). The Boards decision also notes that these statements are in the Supplemental ER. LBP--, NRC at -.
56 Staff Opposition to Appeal at .
57 Id. at -; see also LBP--, NRC at .
58 NFS Opposition to Appeal at ; see also License Amendment Application at -
(unnumbered).
59 ECAN Appeal at . ECAN explains that its point was that the no-build alternative as postulated by NFS did not adequately expose the sheer, unjustified redundancy of the new NFS line. Id.
the petitioner must provide sufficient information to show a genuine dispute on a material issue of law or fact.60 We find that the Supplemental ER contained the dual purpose of and need for the proposed action, as the Board noted.61 ECAN provides no reason why it could not have disputed these claims in its petition to intervene and points to no error or abuse of discretion in the Boards holding. ECAN reiterates its argument before the Board that the redundancy at NFS is unjustified.62 But ECAN does not point to any error or abuse of discretion in the Boards finding that ECAN did not raise a genuine dispute with the applicant because one of the NNSAs purposes is to provide a replacement for conversion capabilities, not just purification. Therefore, we affirm the Boards decision on Contention B.
C. Contention C: Inadequate Consideration of Legacy Contamination in Cumulative Effects Analysis In Contention C, ECAN asserted that the Supplemental ER omits required information related to legacy contamination, which leads to an inadequate cumulative effects analysis.63 ECAN claimed that the Supplemental ER is missing information related to contamination from
() radioisotopes, including plutonium and uranium- in the Nolichucky River downstream of the Erwin site; () undiscovered PFAS (per- and polyfluoroalkyl substances) chemicals that could be present at the Erwin site; and () the presence of unremediated chemicals in the groundwater at the site. ECAN further argued that unanalyzed karst features, nearby sinkholes, and insufficiently modeled groundwater flow on the site led to an incomplete assessment of the 60 NFS Opposition to Appeal at .
61 Supplemental ER at ; LBP--, NRC at .
62 See Interim Storage Partners LLC (WCS Consolidated Interim Storage Facility), CLI--,
NRC , () (explaining that an appeal must address the licensing boards reasoning for rejecting a contention and that it is not enough for an appellant to simply repeat the arguments it made before the Board and hope for a different result from the Commission).
63 Petition to Intervene at -.
proposed amendments potential environmental impacts.64 The Board found Contention C to be a contention of omission challenging the failure of the Supplemental ER to address historical contamination at the Erwin facility and considered four categories of claims for this contention:
() historical radiological contamination, () PFAS groundwater contamination, () sinkhole activity and groundwater plumes, and () air emissions.65 The Board concluded that ECANs claims were outside the scope of the proceeding, were otherwise unsupported, or did not raise a genuine dispute on a material issue of law or fact.66
. Historical Radiological Contamination ECAN argued that the Supplemental ER should have contained a cumulative impacts analysis that considered historical contamination.67 The Board cited the NRCs environmental assessment for the renewal of NFSs license,68 which identified specific radioisotopes and their quantities resulting from Erwin site effluents and discussed cumulative impacts to surface water and groundwater resources.69 The Board noted that the Supplemental ER and NFSs June response to the Staffs request for additional information (RAI Response)70 provided updated information on radiological effluents, which showed no amounts exceeding regulatory 64 Id. at -.
65 LBP--, NRC at -.
66 Id. at .
67 ECAN Appeal at .
68 Final Environmental Assessment for the Proposed Renewal of U.S. Nuclear Regulatory Commission License No. SNM- for Nuclear Fuel Services, Inc. (Oct. ) (ML)
69 LBP--, NRC at (citing License Renewal EA at iv, - to -); License Renewal EA at -, -.
70 Letter from Tim Knowles, NFS, to NRC Document Control Desk (June , ), Attach. ,
NFS Response to the Request for Additional Information (MLA) (RAI Response).
limits.71 NFS represented that the U-Metal process is expected to cause minimal gaseous or liquid effluent impacts.72 And the Board further found that ECAN did not show that the activities authorized by the license amendment would cause an increase in radiological contamination.73 The Board also found that many of ECANs concerns were not related to the current license amendment request but historical contamination, which was evaluated in the Supplemental ER.74 On appeal, ECAN argues that cumulative impacts include past actions and there is nothing in the Supplemental ER to indicate that NFS has taken action to prevent future contamination, thus making future contamination reasonably foreseeable.75 With respect to the Boards findings that the Supplemental ER addressed radiological contamination, ECAN argues that it was not required to consider information outside of the Supplemental ER, including the License Renewal EA and RAI Response referenced by the Board.76 We find that ECAN does not identify any Board error or abuse of discretion with respect to this aspect of Contention C. ECAN argues that a cumulative impacts analysis was not conducted, but neither NFS nor the Staff disputed the premise that cumulative impacts should be considered. Rather, NFS and the Staff identified where the Supplemental ER and other documents discussed historical contamination relevant to the license amendment request.
Therefore, the Board found that ECAN fails to substantiate its claims that relevant data is 71 LBP--, NRC at .
72 Id. (citing RAI Response at -, -, ).
73 Id.
74 Id.
75 ECAN Appeal at .
76 Id. at -.
missing and fails to supply its own supporting data.77 The Board determined that () the License Renewal EA discussed radioisotopes in facility effluents; () the license amendment request provided updated data showing that radiological effluents and Erwin facility-associated levels of stream, soil, and vegetation radioactivity are within regulatory limits; and () NFS demonstrated that effluents are not expected to materially change if the license amendment request is approved.78 We find that ECAN did not explain why the proposed amendment would cause a significant environmental change with respect to the NRCs previous conclusion on cumulative impacts, and therefore, ECAN did not point to any Board error.
ECAN also argues that it was not required to look beyond the Supplemental ER and that the Board erred by relying on the License Renewal EA and RAI Response. As an initial matter, we find that ECAN improperly raises this argument for the first time on appeal.79 In any event, ECAN itself cited these documents in its petition to intervene.80 NFS and the Staff then responded to ECANs petition to intervene with citations to these documents.81 ECAN failed to object to the use of these documents before the Board.
Even if we were to consider ECANs argument, it was reasonable for the Board to look to these documents in this license amendment proceeding. With respect to the License Renewal EA, NFS requested an amendment to its existing materials license, and section .(a) allows license amendment applicants that have already submitted an environmental report to limit their environmental report to an update or supplement of information previously submitted to reflect 77 LBP--, NRC at -.
78 Id. at (citing License Renewal EA at vi, - to -; RAI Response at -, -, ).
79 See USEC, CLI--, NRC at .
80 Petition to Intervene at n., n., & n..
81 NFS Answer to Petition to Intervene at , , , , , -; Staff Answer to Petition to Intervene at , & n., -, .
any significant environmental change.82 Accordingly, in the introduction of the Supplemental ER, NFS stated that [t]he contents of this Supplemental Environmental Report address the impacts to human health and the environment required to construct and operate the Uranium Purification and Conversion Services process, and update information last provided by NFS in its Environmental Report for the Renewal of Special Nuclear Material License No. SNM-.83 ECAN had an opportunity in this proceeding to challenge the Supplemental ER with respect to significant environmental changes since the previous environmental report submitted by NFS. Such an opportunity reasonably entails looking at the previous environmental documents prepared for the NFS facility.84 With respect to the RAI Response, we find no error in the Board referring to an on-the-docket communication between the Staff and applicant related to the license amendment request that all participants had referenced before the Board.
. PFAS Chemicals ECAN claimed that the Supplemental ER was deficient because it did not present an analysis of PFAS chemicals at the NFS site.85 The Board found that ECANs factual claims were based on speculation and that ECAN did not identify any requirement in Part to support its demand for an analysis of PFAS chemicals.86 On appeal, ECAN claims that the Board ignored a statement from its expert that PFAS chemicals are likely present in contaminated 82 C.F.R. § .(a).
83 Supplemental ER at .
84 Because C.F.R. § . is directed at what applicants must submit, the focus is on an environmental report. Since the purpose of the environmental report is to facilitate the Staffs preparation of its environmental assessment or environmental impact statement, we find it reasonable that a petitioner should examine the previous environmental assessment in this scenario, especially when it is referenced by all participants before the licensing board.
85 Petition to Intervene at -.
86 LBP--, NRC at .
groundwater underlying NFS and likely would follow the same transport pathways to the Nolichucky River as enriched uranium. But ECAN conceded that it provided no direct evidence that the groundwater at the Erwin site is contaminated by PFAS chemicals.87 As we have previously stated, expert opinions that state a conclusion without explaining the basis for that conclusion do not fulfill the requirement in section .(f)()(v) that the contention have adequate support.88 Because ECANs expert, Dr. Ketterer, did not provide an explanation for his assertion that PFAS chemicals are likely present, ECAN has not identified an error of law or abuse of discretion.
Furthermore, the Board noted that ECAN does not relate the PFAS contamination to the U-Metal process license amendment request.89 Therefore, the Board concluded that the PFAS aspect of the contention was outside the scope of the proceeding and failed to raise a genuine dispute with the application.90 In its appeal, ECAN did not address these independent grounds for finding the contention inadmissible.
. Groundwater Plumes and Sinkholes ECAN raised concerns relating to historic groundwater plumes and the possibility of sinkholes.91 The Board recognized that the Supplemental ER identified and analyzed groundwater plumes and that the License Renewal EA addressed sinkhole activity and its relevance to the Erwin site.92 The Board found that ECAN did not discuss the license 87 Id. (citing Petition to Intervene at ).
88 USEC, CLI--, NRC at .
89 LBP--, NRC at .
90 Id.
91 Id. (citing Petition to Intervene at -).
92 Id. at & n.. The Board also cited the Supplemental ERs statement that [t]he bedrock strata at the NFS Erwin Facility are consolidated, providing firm foundations for buildings that lie directly on the strata or that are supported by footings. Id. at n..
amendment request in connection with its claims regarding sinkholes and groundwater plumes and did not explain why NFS needed to provide further information on historical plumes or the possibility of sinkhole activity.93 On appeal, ECAN argues that NFS does not provide sufficient information in the Supplemental ER to support its claims that it is remediating the plumes of contaminants, because NFS does not quantify the level of remediation.94 But because ECAN does not explain why more information is needed to support a discussion of environmental impacts flowing from this license amendment request, we find that ECAN has not pointed out any error in the Boards decision.
With respect to sinkholes, ECAN takes issue with the Boards references to the License Renewal EA, an NFS frequently asked questions document, and a NFS Supplemental ER when the Supplemental ER does not mention sinkholes.95 As discussed above, the License Renewal EA provides information relevant to this license amendment request; ECAN was both aware of this document and the other participants references to this document but did not raise an objection until the appeal. While the Board did refer to a Supplemental ER in its decision, this seems to be a typographical error. The corresponding footnote refers to the Supplemental ER at issue in this proceeding and contains a relevant quotation from the Supplemental ER.96 There are no other references to a Supplemental ER in the Boards decision. Finally, we need not address ECANs argument that the Board should not have cited the frequently asked questions document because the Board primarily relied on the 93 Id. at -.
94 ECAN Appeal at .
95 Id.
96 LBP--, NRC at & n..
License Renewal EA for its finding on sinkholes.97 We find that ECAN has not identified any error of law or abuse of discretion in the Boards treatment of this aspect of Contention C.
. Air Emissions ECAN also argued in Contention C that air emissions would double if the license amendment request were granted.98 As the Board noted, this claim was based on a misunderstanding of a statement in the Supplemental ER that air emissions from the U-Metal activity would be similar to those from current operations.99 NFS clarified that it does not seek to increase the material possession limit in its license, so any new activities under the license amendment would be offset by a reduction in NFSs current activities.100 On appeal, ECAN asserts that [a] new additional industrial process will obviously increase air emissions.101 But ECAN does not present any support for this position.102 ECAN also argues that the Board did not consider revision of the Supplemental ER, which was submitted to the NRC the day after LBP-- was issued.103 ECAN does not state how anything in the revised document points to a fault in the Boards decision. Moreover, a new or amended contention would be the appropriate method of raising a concern based on new information in the revised environmental 97 See id. In a footnote, the Board cited an NRC response on its frequently asked questions website about the NFS facility that discussed, with reference to the License Renewal EA, sinkholes in the Erwin area. Id. at n..
98 Id. at (citing Petition to Intervene at ).
99 See id. at , (citing Petition to Intervene at (quoting RAI Response at )).
100 Id. at (citing NFS Answer to Petition to Intervene at (quoting RAI Response at )).
101 ECAN Appeal at -.
102 ECAN claims that there is no indication that any of the current sources of air emissions will be discontinued or reduced but does not engage with NFSs statement in the RAI Response that any new activities performed under the license amendment would be offset by a reduction in NFSs current activities. Id. at ; RAI Response at .
103 ECAN Appeal at .
report. ECAN has not identified an error of law or abuse of discretion by the Board regarding this portion of Contention C.
Because ECAN has not pointed to Board error for any aspect of this contention, we affirm the Boards decision with respect to Contention C.
D. Contention D: Inadequacy of Fuel Cycle Facility Regulations In Contention D, ECAN argues that the NRCs fuel cycle facility regulations are insufficient to protect public health, safety, and security because they lack stringent quality assurance requirements.104 The Board rejected Contention D as an improper challenge to a Commission regulation and outside the scope of the proceeding because ECAN did not account for the applicable quality assurance requirements in C.F.R. § . and did not submit a petition for waiver of those requirements.105 On appeal, ECAN largely repeats the claims it made before the Board. ECAN contends that the license amendment would authorize a process that mirrors the one at the Y- facility.106 ECAN further claims that the Y- industrial process line is subject to DOEs quality assurance requirements, which are more comprehensive than the NRC quality assurance regulations that would apply at the NFS facility.107 As it argued before the Board, ECAN contends that the NFS 104 Petition to Intervene at .
105 LBP--, NRC at . Under C.F.R. § ., licensing boards may not entertain challenges to the validity of Commission regulations in individual licensing proceedings except in certain special circumstances in which a waiver is requested and found to be appropriate.
Section .(b) and Commission caselaw detail the prima facie showing that an intervenor must make to establish the requisite special circumstances so that a waiver may be granted. . . . Without a waiver determination by the Commission, a contention that challenges a rule is outside the scope of the proceeding and may not be given further consideration by a licensing board. Id. (citing Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units and ), CLI--, NRC , - (); NextEra Energy Point Beach, LLC (Point Beach Nuclear Plant, Units and ), CLI--, NRC , , ()).
106 ECAN Appeal at .
107 Id.
facility should be subject to stricter DOE quality assurance regulations. In part, ECAN maintains that stricter standards should apply due to the asserted poor quality assurance corporate culture of NFS and the historical safety record at the Erwin site.108 Despite arguing that the applicable NRC regulations are not stringent enough, ECAN did not submit a waiver petition under C.F.R. § .. Nor has ECAN discussed the criterion in section . that special circumstances with respect to the subject matter of the particular proceeding are such that the application of the rule or regulation (or a provision of it) would not serve the purposes for which the rule or regulation was adopted.109 ECAN has not explained the differences between the DOE and NRC quality assurance requirements or why any differences between the DOE and NRC requirements would render the NRC regulations insufficient. Because ECAN has not satisfied the rule waiver requirements of section ., we do not need to address ECANs remaining arguments relating to NFSs character and historical performance. ECAN has not pointed to any error in the Boards decision; therefore, we affirm the Boards decision on Contention D.
108 Id. at -.
109 C.F.R. § .(b).
CONCLUSION ECAN has not identified any error of law or abuse of discretion on the part of the Board in LBP--. For the above reasons and for the reasons given by the Board, we affirm the Boards decision in LBP--.
For the Commission Brooke Digitally signed by Brooke P. Clark P. Clark Date: 2023.10.05 10:49:07 -04'00' Brooke P. Clark Secretary of the Commission Dated at Rockville, Maryland, this th day of October .
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
Nuclear Fuel Services, Inc. ) Docket No. 70-143-LA
)
(License Amendment Application) )
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER (CLI-23-03) have been served upon the following persons by Electronic Information Exchange.
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Office of the General Counsel Mail Stop: O-16B33 Mail Stop - O-14A44 Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ocaamail.resource@nrc.gov Adam S. Gendelman Travis C. Jones Mauri T. Lemoncelli U.S. Nuclear Regulatory Commission Nicolas P. Mertz Office of the Secretary of the Commission Kevin C. Roach Mail Stop: O-16B33 E-mail: adam.gendelman@nrc.gov Washington, DC 20555-0001 travis.jones@nrc.gov E-mail: hearingdocket@nrc.gov mauri.lemoncelli@nrc.gov nicolas.mertz@nrc.gov kevin.roach@nrc.gov U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 Nuclear Fuel Services, Inc.
Washington, DC 20555-0001 1205 Banner Hill Road Roy Hawkens, Chief Administrative Judge Erwin, TN 37650 Dr. Sue H. Abreu, Associate Chief Timothy A. Knowles Administrative Judge (Technical) Director, Safety and Safeguards G. Paul Bollwerk, Administrative Judge E-mail: taknowles@nuclearfuelservices.com William J. Froehlich, Administrative Judge Noel M. Johnson, Law Clerk Emily G. Newman, Law Clerk Counsel for Nuclear Fuel Services, Inc.
E-mail: roy.hawkens@nrc.gov Morgan, Lewis & Bockius, LLC sue.abreu@nrc.gov 1111 Pennsylvania Ave NW paul.bollwerk@nrc.gov Washington, DC 20004 william.froehlich@nrc.gov Ryan K. Lighty noel.johnson@nrc.goc Molly Mattison emily.newman@nrc.gov E-mail: ryan.lighty@morganlewis.com molly.mattison@morganlewis.com
Nuclear Fuel Services 70-143-LA COMMISSION MEMORANDUM AND ORDER (CLI-23-03)
Counsel for the Erwin Citizens Awareness Network Terry J. Lodge 316 North Michigan Street, Suite 520 Toledo, OH 43604 E-mail: tjlodge50@yahoo.com Clara I. Sola Digitally signed by Clara I. Sola Date: 2023.10.05 10:53:30 -04'00' Office of the Secretary of the Commission Dated at Rockville, Maryland, this 5th day of October 2023.
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