ML23080A294

Nuclear Fuel Services, Inc.S Brief in Opposition to Erwin Citizens Awareness Networks Appeal of LBP-23-02

ML23080A294
Person / Time
Site:	Erwin
Issue date:	03/21/2023
From:	Lighty R, Mattison M Morgan, Morgan, Lewis & Bockius, LLP, Nuclear Fuel Services
To:	NRC/OCM
SECY RAS
References
ASLBP 23-976-01-LA-BD02, RAS 56678, 70-143-LA, LBP-23-02
Download: ML23080A294 (0)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

BEFORE THE COMMISSION

In the matter of:

Docket No. 70-143-LA NUCLEAR FUEL SERVICES, INC.

March 21, 2023 (License Amendment Application)

NUCLEAR FUEL SERVICES, INC.S BRIEF IN OPPOSITION TO ERWIN CITIZENS AWARENESS NETWORKS APPEAL OF LBP-23-02

RYAN K. LIGHTY, ESQ.

MOLLY R. MATTISON, ESQ.

MORGAN, LEWIS & BOCKIUS LLP

Counsel for Nuclear Fuel Services, Inc.

TABLE OF CONTENTS I. INTRODUCTION............................................................................................................. 1 I. BACKGROUND & LEGAL STANDARDS.................................................................... 2 A. The LAR & Procedural History............................................................................. 2 B. Legal & Regulatory Standards............................................................................... 5

1. Environmental Review for the LAR.......................................................... 5

2. Hearing Requests & Contention Admissibility.......................................... 5

3. Standard of Review on Appeal.................................................................. 6 II. THE COMMISSION SHOULD AFFIRM LBP-23-02 BECAUSE ECAN FAILS TO IDENTIFY ANY ERROR OF LAW OR ABUSE OF DISCRETION....................... 8 A. ECAN Identifies No Error of Law or Abuse of Discretion in the ASLBs Ruling on Proposed Contention A......................................................................... 9 B. ECAN Identifies No Error of Law or Abuse of Discretion in the ASLBs Ruling on Proposed Contention B....................................................................... 12 C. ECAN Identifies No Error of Law or Abuse of Discretion in the ASLBs Ruling on Proposed Contention C....................................................................... 16

1. Historical Contamination......................................................................... 17

2. PFAS Chemicals...................................................................................... 20

3. Sinkholes and Groundwater Plumes........................................................ 22

4. Air Emissions........................................................................................... 23 D. ECAN Identifies No Error of Law or Abuse of Discretion in the ASLBs Ruling on Proposed Contention D....................................................................... 25 III. CONCLUSI ON................................................................................................................ 26

ii TABLE OF AUTHORITIES

NRC Cases AmerGen Energy Co. LLC, (Oyster Creek Nuclear Generating Station),

CLI-06-24, 64 NRC 111 (2006)............................................................................................... 26 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-09-7, 69 NRC 235 (2009)................................................................................................... 7 Crow Butte Res., Inc. (In Situ Leach Facility, Crawford, Nebraska),

CLI-09-9, 69 NRC 331 (2009)................................................................................................... 7 Crow Butte Res., Inc. (Marsland Expansion Area),

CLI-14-2, 79 NRC 11 (2014)..................................................................................................... 7 Crow Butte Res., Inc. (North Trend Expansion Project),

CLI-09-12, 69 NRC 535 (2009)................................................................................................. 7 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3),

CLI-01-24, 54 NRC 349 (2001)................................................................................................. 6 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3),

CLI-04-36, 60 NRC 631 (2004)........................................................................................... 8, 22 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3),

CLI-05-24, 62 NRC 551 (2005)............................................................................................... 25 Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, & 3),

CLI-99-11, 49 NRC 328 (1999)................................................................................................. 6 Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant),

CLI-15-23, 82 NRC 321 (2015)................................................................................................. 6 Exelon Generation Co. (Early Site Permit for Clinton ESP Site),

LBP-05-19, 62 NRC 134 (2005)............................................................................................... 19 Fansteel, Inc. (Muskogee, Oklahoma Site),

CLI-03-13, 58 NRC 195 (2003)............................................................................................... 21 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4),

ALAB-952, 33 NRC 521 (1991)................................................................................................ 7 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4),

CLI-91-13, 34 NRC 185 (1991)................................................................................................. 7 Ga. Inst. of Tech. (Ga. Tech Research Reactor, Atlanta, Ga.),

LBP-95-06, 41 NRC 281 (1995)............................................................................................... 16 GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station),

CLI-00-6, 51 NRC 193 (2000)................................................................................................. 21 Hydro Res., Inc. (Crownpoint, NM),

CLI-06-1, 63 NRC 1 (2006)....................................................................................................... 7

iii Interim Storage Partners, LLC (WCS Consol. Interim Storage Facility),

CLI-20-14, 92 NRC 463 (2020)............................................................................................... 16 Interim Storage Partners, LLC (WCS Consol. Interim Storage Facility),

CLI-20-15, 92 NRC 491 (2020)................................................................................................. 7 La. Energy Servs., LP (National Enrichment Facility),

CLI-05-28, 62 NRC 721 (2005)............................................................................................... 10 Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 & 4),

CLI-11-9, 74 NRC 233 (2011)................................................................................................... 7 Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 & 4),

CLI-12-7, 75 NRC 379 (2012)................................................................................................... 7 N. States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2),

CLI-10-27, 72 NRC 481 (2010)............................................................................................... 19 Nuclear Fuel Services (License Amendment Application),

LBP-23-02, 97 NRC __ (Jan. 30, 2023) (slip op.)............................................................. passim Paina Hawaii, LLC, CLI-06-18, 64 NRC 1 (2006)..................................................................................................... 5 Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation),

CLI-02-25, 56 NRC 340 (2002)............................................................................................... 10 Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation),

CLI-99-10, 49 NRC 318 (1999)................................................................................................. 6 Progress Energy Fla., Inc. (Levy Cty. Nuclear Power Plant, Units 1 & 2),

CLI-10-2, 71 NRC 27 (2010)..................................................................................................... 7 Shieldalloy Metallurgical Corp. (Newfield, N.J. Facility),

CLI-07-20, 65 NRC 499 (2007)........................................................................................... 8, 26 USEC Inc. (Am. Centrifuge Plant),

CLI-06-10, 63 NRC 451 (2006)..................................................................................... 8, 11, 21 USEC, Inc. (Am. Centrifuge Plant),

CLI-06-9, 63 NRC 433 (2006)................................................................................................. 26 Regulations 10 C.F.R. § 2.302............................................................................................................................ 4 10 C.F.R. § 2.309................................................................................................................... passim 10 C.F.R. § 2.311................................................................................................................... passim 10 C.F.R. § 2.335.......................................................................................................................... 25 10 C.F.R. § 51.45............................................................................................................................ 5 10 C.F.R. § 51.60.......................................................................................................... 5, 19, 20, 23 10 C.F.R. § 70.23............................................................................................................................ 5 10 C.F.R. § 70.35............................................................................................................................ 5

iv Federal Register Notices Changes to Adjudicatory Process; Final Rule, 69 Fed. Reg. 2,182, (Jan. 14, 2004)............................................................................................ 6 Nuclear Fuel Services, Inc.,

87 Fed. Reg. 53,507 (Aug. 31, 2022)......................................................................................... 4

v I. INTRODUCTION

Pursuant to 10 C.F.R. § 2.311(b), Nuclear Fuel Services, Inc. (NFS) submits this Brief

in Opposition to the Appeal of LBP-23-02 (Appeal), filed by Erwin Citizens Awareness

Network (ECAN).1 In LBP-23-02,2 the Atomic Safety and Licensing Board (ASLB or

Board) denied ECANs October 31, 2022 hearing request and petition to intervene in this

proceeding (Petition).3 As explained more fully below, the Commission should affirm

LBP-23-02 because ECAN identifies no reason to disturb the Boards well-reasoned decision.

As a general matter, the Appeal fails to even acknowledge the applicable standard of

review on appeal, which places the burden on the appellant to identify an error of law or

abuse of discretion in the Boards ruling. Furthermore, the Appeal does noteven once

mention or discuss the Boards application of the Commissions admissibility criteria in 10

C.F.R. § 2.309(f)(1). ECAN does not engage with any of the Boards specific legal and factual

reasoning and conclusions as to the six admissibility criteria. And ECAN does not provide any

explanation as to how any of those unacknowledged conclusions regarding the Section

2.309(f)(1) criteria are allegedly affected by some unidentified error of law or abuse of

discretion. On its face, this approach is wholly insufficient to present a valid appeal of the

Boards ruling, and the Commission should summarily reject the Appeal on its face for that

reason alone.

1 Notice of Appeal of LBP-23-02 by Petitioner [ECAN] and Brief in Support of Appeal (Feb. 24, 2023)

(ML23055A149) (Appeal).

2 Nuclear Fuel Services (License Amendment Application), LBP-23-02, 97 NRC __ (Jan. 30, 2023) (slip op.)

(ML23030B891).

3 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. 31, 2022) (ML22304A709) (Petition).

Instead of engaging with the appellate standard of review or attempting to rebut the

Boards reasoning as to the contention admissibility criteria, ECAN offers generalized

observations and platitudes that provide no grounds to justify overturning the Boards well-

reasoned decision. As detailed in the discussion below, ECAN largely repeats its original

arguments and then presents conclusory assertions that the Board should have ruled differently.

However, many of those arguments and assertions rest on a misreading or misunderstanding of

the underlying application documents or LBP-23-02 or both. Moreover, some of ECANs claims

present entirely new arguments and documents that were not raised in the earlier proceedings.

But those arguments are unpersuasive because the Board cannot be faulted for not considering

claims and information that were never even presented to the Board. Ultimately, nothing in the

Appeal identifies any error of law or abuse of discretion in the Boards ruling. Thus, the

Commission should affirm LBP-23-02 in its entirety.

I. BACKGROUND & LEGAL STANDARDS

A. The LAR & Procedural History

NFS is a manufacturer and processor of specialty nuclear fuels.4 The primary licensed

activity at its Erwin, Tennessee, facility (under its existing 10 C.F.R. Part 70 license, SNM-124)

is the production of nuclear fuel for the United States Navy.5 NFS submitted the LAR on

November 18, 2021. Given the sensitive nature of the application, some of the information was

submitted as Sensitive Unclassified Non-Safeguards Information (SUNSI). However, NFS

submitted a publicly available version of the LARs Supplement to Applicants Environmental

4 Letter from T. Knowles, NFS, to NRC Document Control Desk, License Amendment Request for U-Metal at the NFS Site, attach. 1 at app. 1A (PDF page 32 of 35) (Nov. 18, 2021) (ML21327A099) (public version)

(LAR). The LAR also includes the Supplement to Applicants Environmental Report (ML22066B005)

(SAER).

5 SAER at 2 (PDF page 12 of 65).

2 Report (SAER) on February 24, 2022. The LAR asks the NRC to amend the SNM-124

license to allow new capabilities associated with the U-Metal processnamely, (1) conversion

and (2) purificationpursuant to a contract between NFS and the U.S. Department of Energys

National Nuclear Security Administration (NNSA).

By way of background, NNSA is tentatively planning to shutdown certain legacy

uranium processing equipment at its Y-12 facility in Oak Ridge, Tennessee, in the 2023-time

frame. NNSA plans to partially replace this legacy uranium processing system capability with

new electrorefining technology to purify high-enriched uranium (HEU) metal. However, this

new technology will not be available until 2023, at the earliest. Moreover, even after the new

electrorefining technology is available, it will not be capable of converting oxides to metalan

important part of the existing processunless and until a separate future project is authorized

and completed, potentially many years from now. NNSAs contract with NFS is intended to

address two needs: (1) to ensure NNSA can convert oxides to metal after the legacy equipment at

Y-12 is shut down, and (2) to hedge against the technology risk associated with the new

electrorefining purification process.

On March 25, 2022, the NRC staff docketed the LAR for detailed licensing review.6

Shortly thereafter, on April 28, 2022, the NRC Staff sent a request for additional information

(RAI) to NFS seeking further informati on related to the environmental review.7 NFS

responded via letter dated June 30, 2022, providing additional details to supplement the SAER

6 Letter from J. Downs, NRC, to T. Knowles, NFS, Acceptance of Application for U-Metal License Amendment - Enterprise Project Identification Number L-2021-LLA-0213 at 1 (Mar. 25, 2022)

(ML22080A238).

7 Letter from J. Caverly, NRC, to T. Knowles, NFS, Request for Additional Information to Support Environmental Review of Nuclear Fuel Services, Inc. Application to Amend Its Special Nuclear Materials License SNM-124 to Construct and Operate a Uranium Metal Process (Docket Number: 70-143) at 1 (Apr. 28, 2022) (ML22111A281).

3 (RAI Response).8 The NRC published a notice in the Federal Register on August 31, 2022,

providing an opportunity for members of the public to challenge the LAR by submitting hearing

requests and petitions to intervene by October 31, 2022 (Hearing Opportunity Notice).9 On

October 31, 2022, ECAN filed its Petition.10 Fifteen days after the hearing request deadline

expired, ECAN served on the parties to this proceeding a Declaration from Dr. Michael Ketterer

(Untimely Ketterer Declaration).11 NFS and the NRC Staff timely filed Answers to the

Petition, and ECAN filed a timely Reply.12 The Board held oral argument regarding contention

admissibility on December 12, 2022,13 and issued LBP-23-02 on January 30, 2023, concluding

that all four of ECANs proposed contentions were inadmissible, denying the Petition, and

terminating the proceeding.14 ECAN filed its Appeal on February 24, 2023.15 And NFS hereby

timely files its opposition thereto.16

8 Letter from T. Knowles, NFS, to NRC Document Control Desk, Response to NRC Request for Additional Information to Support Environmental Review of NFS Application to Amend SNM-124 to Construct and Operate a Uranium Metal Process at 1 (Jun. 30, 2022) (ML22193A034).

9 Nuclear Fuel Services, Inc., 87 Fed. Reg. 53,507 (Aug. 31, 2022). The Hearing Opportunity Notice also provided an opportunity for members of the public to request access to the SUNSI portions of the LAR, but ECAN did not request such access.

10 The Petition was not accompanied by a Certificate of Service as required by 10 C.F.R. § 2.302(c). Also, the Petition referenced a Declaration of Dr. Michael E. Ketterer as being attached thereto. See, e.g., Petition at 24.

However, the attachment served on the parties on October 31, 2022, contained only a cover page with no declaration. See Decl. of Dr. Michael E. Ketterer (Oct. 31, 2022) (ML22319A251).

11 See Notice of Refiling of Decl. of Michael Ketterer, Ph.D (Nov. 15, 2022) (ML22319A251) (Untimely Ketterer Declaration).

12 [NFS]s Answer to [ECAN]s [Petition] (Nov. 25, 2022) (ML22329A376) (NFS Answer); NRC Staff Answer to [ECAN]s [Petition] (Nov. 23, 2022) (ML22327A214) (NRC Staff Answer); [ECAN]s Combined Reply in Support of [Petition] (Dec. 2, 2022).

13 Nuclear Fuel Services (License Amendment Application), Transcript; Prehearing Conference (Dec. 12, 2022)

(ML22348A071).

14 See generally LBP-23-02.

15 See generally Appeal.

16 10 C.F.R. § 2.311(b) (Any party who opposes the appeal may file a brief in opposition to the appeal within 25 days after service of the appeal.).

4 B. Legal & Regulatory Standards

1. Environmental Review for the LAR

NRC licensees and license applicants are not directly subject to the requirements of

NEPAbecause NEPA only prescribes requirements for federal agencies.17 However, NRC

licensees and license applicants are expected to provide certain information to the NRC (to assist

the agency in complying with those obligations) pursuant to requirements codified in 10 C.F.R.

Part 51. Certain types of applicants are required, under 10 C.F.R. § 51.45, to submit a

comprehensive Applicants Environmental Report providing analyses of the full range of

topics addressed under NEPA, such as alternatives to the proposed action, and cumulative

impacts. However, that requirement is not directly applicable here.

Under 10 C.F.R. §§ 70.35, 70.23, and 51.60, NFS was required to submit with its LAR a

document titled Supplement to Applicants Environmental Report (SAER). Pursuant to

10 C.F.R. § 51.60, applicants for Part 70 license amendments are not required to submit the

comprehensive information specified in 10 C.F.R. § 51.45. Rather, the regulations require the

submission of a far more streamlined documenti.e., an SAERthat merely identifies any

significant environmental change since the previous environmental review.18

2. Hearing Requests & Contention Admissibility

Pursuant to 10 C.F.R. § 2.309(a)(1), a hearing request may only be granted if the

presiding officer determines that the petitioner has demonstrated standing and has proposed at

least one admissible contention that meets all of the requirements of 10 C.F.R. § 2.309(f)(1).

Thereunder, to be admissible, a proposed contention must: (i) provide a specific statement of

17 Paina Hawaii, LLC, CLI-06-18, 64 NRC 1, 5 (2006) (It is the NRC, not [the applicant], that has the legal duty to perform a NEPA analysis and to issue appropriate NEPA documents.).

18 10 C.F.R. § 51.60(a).

5 the issue of law or fact to be raised or controverted; (ii) provide a brief explanation of the basis

for the contention; (iii) demonstrate that the issue raised is within the scope of the proceeding;

(iv) demonstrate that the issue raised is material to the findings the NRC must make to support

the action that is involved in the proceeding; (v) provide a concise statement of the alleged facts

or expert opinions, including references to the specific sources and documents that support the

petitioners position and upon which the petitioner intends to rely; and (vi) provide sufficient

information to show that a genuine dispute exists with the applicant on a material issue of law

or fact.

Failure to satisfy any one of these six admissibility criteria requires that a proposed

contention be rejected.19 These criteria are strict by design.20 The rules were toughenedin

1989 because in prior years licensing boards had admitted and litigated numerous contentions

that appeared to be based on little more than speculation.21 The petitioner alone bears the

affirmative burden to satisfy these criteria. 22

3. Standard of Review on Appeal

NRC regulations at 10 C.F.R. § 2.311(c) permit petitioners to appeal orders denying

hearing requests and petitions to intervene, as of right, on the sole question of whether the

19 See Changes to Adjudicatory Process; Final Rule, 69 Fed. Reg. 2,182, 2,221 (Jan. 14, 2004); see also Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999).

20 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001).

21 Id. (quoting Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, & 3), CLI-99-11, 49 NRC 328, 334 (1999)).

22 See Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-15-23, 82 NRC 321, 325, 329 (2015)

(stating [t]he proponent of a contention is responsible for formulating the contention and providing the necessary support to satisfy the contention admissibility requirements and it is Petitioners responsibility, not the Boards, to formulate contentions and to provide the necessary information to satisfy the basis requirement for admission) (citation omitted).

6 request and/or petition should have been granted.23 The Commission generally defers to Board

decisions on contention admissibility, but will reverse a Boards ruling if there has been an error

of law or an abuse of discretion.24 The Commission has reversed Board decisions admitting

speculative contentions because entertain[ing] contentions grounded on little more than

guesswork would waste the scarce adjudicatory resources of all involved.25

The Commission affords licensing board rulings on contention admissibility substantial

deference,26 absent an error of law or abuse of discretion.27 Thus, when a licensing board has

reviewed the record in detail, the Commission generally is disinclined to upset its findings,

particularly on matters involving fact-specific issues or consideration of expert affidavits or

submissions.28 The Commission reviews questions of law de novo, and will reverse a licensing

boards legal rulings if they are a departure from[,] or contrary to[,] established law. 29 To

prevail on an abuse of discretion claim, the a ppellant must persuade the Commission that a

reasonable mind could reach no other result.30

23 10 C.F.R. § 2.311(c).

24 Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 & 4), CLI-12-7, 75 NRC 379, 386 (2012) (citing Progress Energy Fla., Inc. (Levy Cty. Nuclear Power Plant, Units 1 & 2), CLI-10-2, 71 NRC 27, 29 (2010); AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 259 (2009); Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 & 4),

CLI-11-9, 74 NRC 233, 237 (2011)).

25 Crow Butte Res., Inc. (North Trend Expansion Project), CLI-09-12, 69 NRC 535, 552 (2009); see also Crow Butte Res., Inc. (In Situ Leach Facility, Crawford, Nebraska), CLI-09-9, 69 NRC 331, 364 (2009) (arguments that are speculative do not form the basis for a litigable contention).

26 Crow Butte Res., Inc. (Marsland Expansion Area), CLI-14-2, 79 NRC 11, 26 (2014).

27 Interim Storage Partners, LLC (WCS Consol. Interim Storage Facility), CLI-20-15, 92 NRC 491, 494 (2020)

(citing Crow Butte, CLI-14-2, 79 NRC at 26).

28 Hydro Res., Inc. (Crownpoint, NM), CLI-06-1, 63 NRC 1, 2 (2006).

29 Oyster Creek, CLI-09-7, 69 NRC at 259 (citation omitted).

30 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), ALAB-952, 33 NRC 521, 532 (1991), affd, CLI-91-13, 34 NRC 185 (1991) (internal citation omitted).

7 An appeal that does not point to an error of law or an abuse of discretion, but simply

restates the petitioners arguments, does not constitute a valid appeal.31 When a licensing board

holds that a contention is inadmissible for failin g to meet more than one of the requirements

specified in 10 C.F.R. § 2.309(f)(1)(i)-(vi), a petitioners failure to acknowledge and rebut each

ground for the Boards ruling is sufficient justification for the Commission to reject the

petitioners appeal.32 As the Commission has made clear, it will not consider new arguments

raised for the first time on appeal that the Board never had an opportunity to consider.33

II. THE COMMISSION SHOULD AFFIRM LBP-23-02 BECAUSE ECAN FAILS TO IDENTIFY ANY ERROR OF LAW OR ABUSE OF DISCRETION

On appeal, ECAN asserts that the Board erred in its admissibility ruling as to all four

proposed contentions. But, as explained further below, ECAN identifies no error of law or abuse

of discretion by the Board. Indeed, the Appeal is conspicuously devoid of any meaningful

engagement with the relevant legal standards for proposed contentions, much less the Boards

application of law and fact in the context of t hose standards. Instead, Petitioners present vague

and generalized commentary (including numerous statements raised for the fi rst time on appeal)

alongside conclusory assertions that the Boards decision is erroneous. This approach,

however, is insufficient to satisfy the standard of review on appeal, and wholly fails to justify

abandoning the substantial deference the Commission typically affords licensing board

decisions.

31 Shieldalloy Metallurgical Corp. (Newfield, N.J. Facility), CLI-07-20, 65 NRC 499, 503-05 (2007).

32 See, e.g., Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-04-36, 60 NRC 631, 638 (2004).

33 USEC Inc. (Am. Centrifuge Plant), CLI-06-10, 63 NRC 451, 458 (2006) (quotations and citation omitted).

The purpose of an appeal is to point out errors made in the Boards decision, not to present arguments and evidence never provided to the Board. Id. (quotations and citation omitted).

8 A. ECAN Identifies No Error of Law or Abuse of Discretion in the ASLBs Ruling on Proposed Contention A

ECAN framed its Proposed Contention A 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.34

In essence, ECAN argued that NEPA and the AEA require a nuclear weapons proliferation

review for this licensing action.35 According to ECAN, because one was not conducted, the

LAR is deficient.

In ruling on this proposed contention, the ASLB concluded it was inadmissible for two

reasons. First, the Board held that Proposed Contention A is beyond the scope of this

proceeding, contrary to 10 C.F.R. § 2.309(f)(1)(iii), because the Commission has determined that

neither NEPA nor the AEA require a proliferation assessment in the context of an agency fuel

cycle facility licensing actions.36 Second, the Board held that the Commissions determination

(that proliferation assessments are not required for fuel cycl e facility licensing actions) does not

turn on the end use of the material; thus, Proposed Contention A also fails to raise a genuine

material dispute with the LAR, contrary to 10 C.F.R. § 2.309(f)(1)(vi).37

34 Petition at 8.

35 Id.

36 NFS, LBP-23-02, 97 NRC at __ (slip op. at 21-24).

37 Id. at __ (slip op. at 24-26).

9 In its brief, ECAN does not acknowledge or engage with the relevant legal standard for

an appeal under 10 C.F.R. § 2.311, which requires ECAN to identify an error of law or abuse

of discretion in the Boards ruling. ECANs brief also is devoid of any discussion of the two

contention admissibility criteria the Board deter mined were unsatisfied by ECANs claims in

Proposed Contention A: 10 C.F.R. § 2.309(f)(1)(iii) and (vi). Instead, ECANs appeal simply

repeats the original arguments from its Petition and suggests that the Boards ruling was

somehow incorrect. But that approach falls far short of satisfying ECANs burden on appeal.

The Commission should affirm LBP-23-02 for that reason alone. Moreover, even if ECANs

vague and recycled claims on appeal could be construed to imply an error of law in both of the

Boards bases for finding Proposed Contention A inadmissible, those claims would be meritless

for the reasons set forth below.

First, the Board held that Proposed Contention A is beyond the scope of this proceeding

because the Commission has determined that neit her NEPA nor the AEA requires a proliferation

assessment for NRC fuel cycle facility licensing actions.38 Specifically, in LBP-23-02, the Board

cited several Commission adjudicatory orders that support this conclusion, including orders from

the National Enrichment Facility proceeding, the American Centrifuge Plant proceeding, and the

Private Fuel Storage proceeding.39 On appeal, ECAN does not assert that the Board erred by

relying on bad precedentnor could it, because those rulings are and remain controlling

authority and have not been overturned.

Furthermore, ECAN does not engage with these rulings or attempt to distinguish them

from the circumstances here. In fact, ECANs brief disregards the American Centrifuge Plant

38 Id. at __ (slip op. at 21-24).

39 Id. (citing La. Energy Servs., LP (National Enrichment Facility), CLI-05-28, 62 NRC 721, 724 (2005); USEC, CLI-06-10, 63 NRC at 463; Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), CLI-02-25, 56 NRC 340, 347 (2002)).

10 and Private Fuel Storage rulings altogether. And ECAN mentions the National Enrichment

Facility order only once. Specifically, ECAN derides the Commissions ruling in that case as

juridical policy that allegedly violates NEPA by promoting segmentation.40 However,

ECAN did not raise a segmentation argument in its original pleadings. That is an entirely new

argument raised for the first time on appeal.41 In contrast, the Board cannot be faulted for not

considering arguments that were never presented in the proceedings below.42 Ultimately, ECAN

identifies no error of law or abuse of discretion in the Boards determination that Proposed

Contention A fails to satisfy 10 C.F.R. 2.309(f)(1)(iii).

Second, in the proceedings before the Board, ECAN argued that a proliferation

assessment is required here because, if the LAR is granted, the material processed at NFS

ultimately could be used by the United States Government to create a nuclear weapon. But, the

Board correctly held that this argument fails to raise a genuine material dispute with the LAR

because the Commission does not require proliferation assessments regardless of any speculated

end use of the material.43 In other words, even assuming ECANs speculation regarding the

end use were correct, its claims still would be inadmissible as a matter of law because end use is

not a material factor in determining whether the Commission requires proliferation assessments.

On appeal, ECAN appears to misconstrue the Boards ruling on this issue. Specifically,

ECAN suggests the Board denied Proposed Contention A because it lacked adequate factual

support regarding the end use of the U-Metal.44 But that is incorrect. The Board did not invoke

40 Appeal at 17-18.

41 Moreover, given that the U.S. Department of Energy has prepared an EIS that contains a nonproliferation assessment for the full range of NNSA activities, it is unclear what ECAN believes has been segmented. See generally NFS, LBP-23-02, 97 NRC at __ n.39 (slip op. at 25 n.39).

42 USEC, CLI-06-10, 63 NRC at 458.

43 NFS, LBP-23-02, 97 NRC at __ (slip op. at 24-26).

44 Appeal at 13.

11 10 C.F.R. 2.309(f)(1)(v) (which requires contentions to have adequate factual support) in

concluding that Proposed Contention A was inadmissible. Rather, as explained above, the Board

held that the end use of the U-Metal was immater ial to the question of whether a proliferation

assessment was required. That is a legal finding, not a factual one, and it is rooted in settled case

lawa circumstance which ECAN does not acknowledge or dispute here.

The Commissions role on appeal is to determine whether the appellant has demonstrated

that the licensing board misapplied controlling law or abused its discretion (e.g., by failing to

consider an argument). Here, ECAN demonstrates neither. ECAN neither disputes that

controlling precedent was correctly applied, nor atte mpts to distinguish that precedent here, nor

points to any argument the Board allegedly failed to consider. Ultimately, the Boards decision

to follow binding precedent was the legally-required outcome. And ECAN provides no basis to

disturb the Boards well-reasoned decision on Proposed Contention A.

B. ECAN Identifies No Error of Law or Abuse of Discretion in the ASLBs Ruling on Proposed Contention B

In Proposed Contention B, ECAN challenged NFSs framing of the purpose and need

for the proposed action, which is to approve an amendment to the NFS license to authorize new

conversion and purification capabilities (the U-Metal process) at NFSs facility in Erwin,

Tennessee.45 By way of background, the National Nuclear Security Administration (NNSA)

currently conducts both of these activities (purification and conversion) at its Y-12 plant in Oak

Ridge, Tennessee. However, NNSA intends to shut down the aging equipment used for these

processes in the 2023 timeframe. As of now NNSA plans to replace the legacy purification

equipment with new equipment that will employ a new electrorefining technology. In

45 SAER at 2 (PDF page 12 of 65).

12 contrast, NNSA does not currently have plans to replace the legacy conversion equipment (but

could do so in the future). Thus, the two-fold purpose of and need for the proposed action (and

the reason NNSA contracted with NFS to perform th ese services) is to: (1) bridge the capability

gap that will occur when the conversion equipment at Y-12 shuts down indefinitely; and

(2) hedge against the technology risk associated with new purification equipment at Y-12 that is

expected to come online in 2023 at the earliest.46

In Proposed Contention B, ECAN alleged that:

The purpose and need for the project is expressed in unduly narrow and time-limited terms, which has caused inadequate consideration of the no-build alternative with the result of biasing the NEPA inquiry and decision to be made by NFS and the NRC in favor of amending the license and proceeding with the proposed project.47

ECANs primary argument was that the SAER was deficient because it should have considered a

no build alternative, in which NNSA simply continues to conduct both conversion and

purification activities at Y-12.

In ruling on this proposed contention, the ASLB concluded it was inadmissible because

ECAN failed to provide adequate support (as required by 10 C.F.R. § 2.309(f)(1)(v)) to

demonstrate a genuine material dispute with the LAR (as required by 10 C.F.R. §

2.309(f)(1)(vi)). In essence, the Board recognized that ECANs additional alternative (i.e., for

NNSA to continue with conversion and purification activities at Y-12, rather than contracting

with a commercial facility) rested on a factually mistaken belief that NNSA is installing new

equipment capable of conducting both conversion and purification.48 As explained in the SAER,

that is not the case. The old purification and conversion equipment is expected to be shut down

46 Id. at 1 (PDF page 11 of 65).

47 Petition at 16.

48 NFS, LBP-23-02, 97 NRC at __ (slip op. at 24-26).

13 in the 2023-time frame; but, the only new equipment being installed at Y-12 is for purification,

not conversion. Thus, after the current equipment at Y-12 shuts down, NNSA will no longer be

able to conduct conversion activities itselfwhich is part of the need for the proposed action.

The Board also recognized that ECAN failed to dispute the other part of the need for the

proposed action. Specifically, ECAN did not explain why it allegedly was unreasonable for

NNSA to engage NFS to provide redundant purification services as a hedge against the

technology risk associated with constructing new purification equipment at Y-12 that will rely on

a new electrorefining technology. Because ECAN appeared to misunderstand the fundamental

framework of the proposed action and the activities at Y-12, the Board reasonably concluded that

ECAN had not raised an adequately supported dispute with the LAR on a material issue of law

or fact.

In its brief, ECAN again does not acknowledge or engage with the relevant legal standard

for an appeal under 10 C.F.R. § 2.311, which requires ECAN to identify an error of law or

abuse of discretion in the Boards ruling. ECANs brief also is devoid of any discussion of the

two contention admissibility criteria the Board determined were unsatisfied by ECANs claims in

Proposed Contention B: 10 C.F.R. § 2.309(f)(1)(v) and (vi). ECAN, again, falls far short of

satisfying its burden on appeal. And that, alone, provides ample grounds for the Commission to

affirm LBP-23-02. Notwithstanding this pleading defect, nothing in ECANs brief comes close

to demonstrating an error of law or abuse of discretion in the Boards ruling on Proposed

Contention B.

First, the appeal criticizes the Boards statement that ECAN failed to dispute certain

critical facts set forth in the supplemental ER. According to ECAN, those critical facts were

not set forth in the SAER, but rather were presented for the first time at the December 12, 2022

14 oral argument on contention admissibility.49 However, ECANs claim is not accurate. The

information that ECAN was required to dispute was, in fact, presented in the SAER. The Board

criticized ECANs failure to acknowledge the two-fold purpose of and need for the proposed

action, to include the conversion capability (which NNSA is not replacing at Y-12), as well as

the hedging aspect associated with the purification capability. 50 As the Board noted, that

information is, in fact, presented in the SAER in addition to the discussion at oral argument.51

Specifically, the purpose and need section of the SAER provides this information:

Legacy uranium processing equipment at the National Nuclear Security Agency's (NNSA) Y-12 plant in Oak Ridge, Tennessee is tentatively planned for shutdown in the 2023 timeframe. Based upon available information, NNSA plans to partially replace this legacy uranium processing system capability with new electrorefining technology to purify high-enriched uranium (HEU) metal. However, this new process will not be available until 2023 at the earliest and will not be capable of converting oxides to metal until completion of a separate future project. Therefore, to maintain the ability to convert oxides to metal, NNSA requires separate HEU purification and conversion capability. To provide both this oxide conversion capability and to hedge against the technology risk associated with the new electrorefining facility, NNSA contracted with NFS to design, license, and demonstrate the capability to perform uranium purification and conversion to uranium metal at the NFS Erwin Facility which is an NRC licensed Category 1 HEU manufacturing facility.52

ECAN identifies no reason it could not have disputed these claims in its original Petition;

and it identifies no error of law or abuse of discretion in the Boards holding that ECAN was

required to, but did not, dispute th is information. Even in its appeal, ECAN does not appear to

acknowledge or appreciate the distinction between the purification activity and the conversion

activity. ECAN simply misunderstands the purpose and need statement in the SAER. As a

49 Appeal at 20.

50 NFS, LBP-23-02, 97 NRC at __ (slip op. at 32-33).

51 Id. at __ (slip op. at 33) (citing NFS Answer at 13, in turn quoting ER at 1).

52 SAER at 1 (PDF page 11 of 65) (emphasis added).

15 matter of settled law, that is insufficient for an admissible contention, 53 and the Board committed

no error in concluding the same.

Furthermore, ECAN makes the odd assertion that it had no burden to show that it

disputes the need for a redundant refinement line at NFS.54 However, 10 C.F.R. 2.309(f)(1)(vi)

plainly places the burden on the petitioner to provide sufficient information to show that a

genuine dispute exists with the applicant/licensee on a material issue of law or fact. So, to the

extent ECAN wanted to challenge the SAERs purpose and need statement, it certainly had the

burden to dispute the central facts55 therein, as the Board correctly held.

Ultimately, ECAN has not met its burden to demonstrate, affirmatively, that the licensing

board misapplied controlling law or abused its discretion (e.g., by failing to consider an

argument). Accordingly, the Appeal provides no basis to disturb the Boards ruling on Proposed

Contention B.

C. ECAN Identifies No Error of Law or Abuse of Discretion in the ASLBs Ruling on Proposed Contention C

In Proposed Contention C, ECAN raised a variety of claims related to air, soil, and water

contamination.56 Specifically, ECAN framed its proposed contention as follows:

NFS has been the contributor as point source to multiple soil and groundwater episodes of industrial chemical contamination throughout its 65-year existence. Over time there have been remediation programs and various attempts to mitigate the presence and intensity of these toxins. They are not adequately identified in the NFS Supplemental Environmental Report. The present status of groundwater contamination is poorly explained and lacks a comprehensive perspective. The possibility of the presence of PFAS chemicals is not addressed. The documented presence of

53 Interim Storage Partners, LLC (WCS Consol. Interim Storage Facility), CLI-20-14, 92 NRC 463, 477-78 (2020) (misreading a document is not adequate support); Ga. Inst. of Tech. (Ga. Tech Research Reactor, Atlanta, Ga.), LBP-95-06, 41 NRC 281, 300 (1995) (A petitioners imprecise reading of a document cannot support a litigable contention).

54 Appeal at 21.

55 NFS, LBP-23-02, 97 NRC at __ (slip op. at 33).

56 Petition at 21-22.

16 radioisotopes identified with NFS for miles downstream in the Nolichucky River is unmentioned. None of the groundwater effects of NFS have been incorporated into the ER as part of a cumulative effects analysis.57

In essence, ECAN raised four claims, related to: (1) historical contamination, (2) PFAS

chemicals, (3) sinkhole activity and historic groundwater plumes, and (4) air emissions. In

ruling on this proposed contention, the ASLB separately considered each of these claims, but

determined that all of them were outside the scope of this proceeding, were unsupported, or

failed to raise a genuine material dispute with the LAR. The Boards ruling in LBP-23-02 is

manifestly correct on all counts, and the Appeal identifies no error of law or abuse of discretion

in the Boards analysis or conclusions, which are further detailed below.

1. Historical Contamination

First, ECAN asserted that the LARs consideration of historical facility effluents,

including their cumulative impacts, needed to be updated, investigated and analyzed, since

[contaminants] will continue to be found... into the unknown future.58 However, as the Board

correctly explained, these claims were improperly focused on past actions rather than the LAR at

issue in this proceeding. More specifically, the Board observed that facility effluents for current

operations (including as to cumulative impacts) already had been analyzed by the NRC in a

previous proceeding (specifically, the License Renewal Environmental Assessment (EA)),59

and that the application documents demonstrated that the LAR would not result in any material

changes to the types or quantities of those previously analyzed effluents.60 Also, the Board

explained that the application documents presented comparative tables of more recent effluent

57 Id.

58 Id. at 22.

59 Final Environmental Assessment for the Proposed Renewal of U.S. Nuclear Regulatory Commission License No. SNM-124 (Oct. 2011) (ML112560265).

60 NFS, LBP-23-02, 97 NRC at __ (slip op. at 45-46).

17 monitoring data and corresponding analyses showing that all contaminants remained well

below regulatory limits.61 The Board found that ECAN fail[ed] to substantiate its claims that

relevant data is missing and fail[ed] to supply its own supporting data.62 Ultimately, the Board

found that ECANs unsupported and conclusory assertions failed to raise a genuine, supported,

material dispute with the LAR and that ECANs complaints about the NRCs previous analyses

of historical effluents were beyond the scope of this proceeding. Accordingly, the Board held

that ECANs effluent-related challenges failed to satisfy 10 C.F.R. 2.309(f)(1)(iii) and (vi). 63

On appeal, ECAN largely focuses on its fundamental legal assertion that cumulative

impacts must be analyzed.64 But that point has never been in dispute. Neither NFS nor the NRC

Staff argued otherwise.65 Nor did the Board reject Proposed Contention C because it determined

a cumulative impacts analysis was not required. 66 Rather, the Board concluded that the

cumulative impacts analysis required by Part 51 was in fact provided. ECAN simply appears to

misunderstand the Boards reasoning in LBP-23-02. As the Board noted: (1) the NRCs License

Renewal EA determined that facility effluent s below regulatory thresholds would not pose

undue cumulative risks to the human health and environment; (2) the LAR provided updated

data showing effluents remain well below re gulatory thresholds; and (3) NFS demonstrated

that effluents are not expected to materially change if the LAR is granted (something ECAN did

not challenge).67 In other words, ECAN failed to explain how or why the NRCs prior

conclusion on cumulative effects allegedly would be altered by the LAR or that anything further

61 Id.

62 Id. at __ (slip op. at 45).

63 Id. at __ (slip op. at 46).

64 Appeal at 22-24.

65 See generally NFS Answer; NRC Staff Answer.

66 See generally NFS, LBP-23-02, 97 NRC at __ (slip op. at 45-46).

67 Id.

18 was required to be presented in the SAER pursuant to Part 51. Simply put, ECANs

misunderstanding of the Boards ruling fails to identify any error of law or abuse of discretion

therein.

Lastly, ECAN alleges that it was not required to consider, in its contention, publicly

available information presented anywhere beyond the four corners of the SAER. Specifically,

ECAN takes issue with the Boards reliance on the License Renewal EA and NFSs June 2022

RAI Response.68 But, ECAN is incorrect as a matter of law. The Commission has long held that

petitioners have an iron-clad obligation to examine all publicly available documentary

material that may be relevant to a proposed contention.69 Moreover, 10 C.F.R. § 51.60(a)

specifies that an SAER need only discuss any significant environmental change since the

previous environmental review. As a matter of logic, any contention alleging a failure to satisfy

this provision must, by necessity, consider the baseline analys is in the previous environmental

review (here, the License Renewal EA). Because ECAN failed to do so, its contention was

wholly without factual basis. And ECANs assertion that it was not required to review the RAI

Response is equally meritless. RAI responses are effectively supplements to the application

itself,70 with which a petitioner is required to demonstrate a genuine material dispute71

something ECAN failed entirely to do here, as explained by the Board. Thus, ECAN has

identified no error of law or abuse of discretion in the Boards ruling on this issue.

68 Appeal at 26.

69 N. States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), CLI-10-27, 72 NRC 481, 496 (2010).

70 See, e.g., Exelon Generation Co. (Early Site Permit for Clinton ESP Site), LBP-05-19, 62 NRC 134, 182 (2005) (acknowledging that RAI responses effectively supplement applications and holding that RAI responses can remedy omissions in applications even after a contention is admitted).

71 10 C.F.R. § 2.309(f)(1)(vi).

19

2. PFAS Chemicals

Next, ECAN argued that the SAER was deficient because it did not present an analysis of

PFAS chemicals at the NFS site.72 However, ECAN pointed to no requirement to do so, and

squarely acknowledged that it was unaware of any direct evidence to support its speculation

that such chemicals exist at the site. 73 Instead, ECAN cited a recommendation from Dr.

Ketterer that an investigation be undertaken to determine whether PFAS chemicals are, in fact,

present.74

In its decision, the Board observed that ECANs factual claims were based on pure

speculation, which is always insufficient for an admissible contention, and it identified no

requirement in Part 51 to support its demand.75 Accordingly, the Board concluded that ECANs

PFAS arguments failed to satisfy 10 C.F.R. § 2.309(f)(1)(v).76 Furthermore, because ECAN

failed to identify any regulatory requirement to perform this investigation, and because the

relevant regulation regarding the content of an SAER (10 C.F.R. § 51.60(a)) does not, in fact,

require one, the Board determined that ECANs demands went beyond the scope of this

proceeding and failed to show a genuine material dispute of law or fact, contrary to 10 C.F.R. §

2.309(f)(1)(iii) and (vi).77

On appeal, ECAN largely repeats its arguments from the proceedings before the Board.

ECAN suggests that the Board improperly ignored a statement from Dr. Ketterer regarding the

likely presence of PFAS chemicals, which reads as follows in its entirety:

72 Petition at 26-28.

73 Id. at 28.

74 Id.

75 NFS, LBP-23-02, 97 NRC at __ (slip op. at 46).

76 Id.

77 Id.

20 Additional water-soluble hazard substances such as per-and polyfluorinated alkyl substances (PFAS) are likely present in contaminated groundwater underlying NFS, and would be expected to be following the same water transport pathways, into the Nolichucky as the enriched U. To the best of my knowledge, this potential scenario has not been investigated by NFS nor regulatory agencies. There is an urgent need to evaluate this possible PFAS contamination scenario.78

However, ECAN identifies no reason the Board was required to accept Dr. Ketterers

conclusory assertion. Bare assertions and speculation are wholly inadequate to support a

proposed contention.79 This includes expert opinions that merely state a conclusion without

explaining the basis for that conclusion, which as a matter of law cannot satisfy the threshold

support requirement in 10 C.F.R. § 2.309(f)(1)(v).80 Because Dr. Ketterer provided no

explanation for his assertion that PFAS chemicals are likely present, and instead presented

only a conclusory assertion, and because neither ECAN nor Dr. Ketterer identified any unmet

obligation in Part 51, the Boards ruling is manifestly correct as a matter of law.

Additionally, ECANs appeal says nothingwhatsoeverabout the Boards other two

bases for rejecting these arguments. Specifically, the Board also found that ECANs PFAS

claims were both outside the scope of the proceeding and failed to raise a genuine dispute with

the application.81 As noted above, when a licensing board holds that a contention is inadmissible

for failing to meet more than one of the requirements specified in 10 C.F.R. § 2.309 (f)(1)(i)-(vi),

a petitioners failure to acknowledge and rebut each ground for the Boards ruling is sufficient

78 Untimely Ketterer Declaration at 2.

79 Fansteel, Inc. (Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195, 203 (2003) (quoting GPU Nuclear, Inc.

(Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 208 (2000)).

80 See USEC, CLI-06-10, 63 NRC at 472.

81 NFS, LBP-23-02, 97 NRC at __ (slip op. at 46).

21 justification for the Commission to reject the petitioners appeal.82 Thus, the Commission should

reject ECANs appeal for that additional reason.

3. Sinkholes and Groundwater Plumes

In its Petition, ECAN raised vague allegations that information regarding historic

groundwater plumes was poorly explained in the SAER.83 However, as the Board noted in its

ruling, ECAN failed to identify any unmet requirement in Part 51 or otherwise explain any

reason that the SAER was required to present further information on historical plumes that are

unrelated to the instant LAR.84 ECANs Petition offered similarly vague assertions that the

SAER allegedly was required to analyze the possibility of sinkhole activity.85 The Board noted,

again, that ECAN had failed to identify any unmet requirement in Part 51 or otherwise explain

why NFS would be required to re-analyze this geologic informati on that was fully analyzed in

the license renewal proceeding for the NFS Facility.86 Accordingly, the Board correctly held that

these arguments were beyond the scope of the proceeding, contrary to 10 C.F.R. §

2.309(f)(1)(iii), and failed to raise a genuine material dispute with the LAR, contrary to 10

C.F.R. § 2.309(f)(1)(vi).87

On appeal, ECAN does not engage with the Boards decision regarding groundwater

plumes. In the four sentences in the Appeal that discuss this topic, ECAN merely repeats its

vague claim that the SAER is not sufficient.88 As a matter of law, far more is required

demonstrate an error of law or abuse of discretion in LBP-23-02 (which these four sentences do

82 See, e.g., Millstone, CLI-04-36, 60 NRC at 638.

83 Petition at 30-32.

84 NFS, LBP-23-02, 97 NRC at __ (slip op. at 47-48).

85 Petition at 32-33.

86 NFS, LBP-23-02, 97 NRC at __ (slip op. at 47-48).

87 Id. at __ (slip op. at 48).

88 Appeal at 26.

22 not even mention). ECANs five-sentence discussion in the Appeal regarding sinkholes fares no

better. There, ECAN derides the ASLBs reference to the License Renewal EA and suggests it

had no duty to review that document.89 As noted above,90 that is incorrect as a matter of law.

Any contention alleging a failure to satisfy 10 C.F.R. § 51.60(a) (providing that SAERs need

only discuss significant environmental changes since the previous environmental review)

necessarily must reference the baseline analysis in the previous environmental review (i.e., the

License Renewal EA); and ECAN had an iron-clad obligation to review that information.

Ultimately, nothing in the Appeal remotely demonstrates any error of law or abuse of discretion

in the Boards treatment of these arguments. 91

4. Air Emissions

Lastly, ECAN argued in its Petition that air emissions from the NFS facility would

double if the LAR is granted, whereas the SAER did not evaluate this change.92 However, as

the Board correctly noted, ECAN simply misunderstood a statement that air emissions from the

U-Metal activity would be similar in attribute and quantity to those from current operations.93

ECAN misinterpreted that statement to mean that such quantity would be emitted two-fold, once

from current operations and then again for the new activity. However, as shown in the LAR,94

89 Id.

90 See supra Section II.C.1.

91 ECAN also asserts that the 2019 NFS supplemental ER referenced in LBP-23-02 was not relied on, or even mentioned, in the ER at issue in this proceeding. Appeal at 26. However, that simply appears to be a typographical error in LBP-23-02. On page 47 of the slip opinion, the words 2019 NFS supplemental ER appear in the body text. See NFS, LBP-23-02, 97 NRC at __ (slip op. at 47). However, the corresponding footnote cites the SAER. See id. at __ n.59 (slip op. at 48 n.59) (referencing ER at 15 and providing a quote that comes directly from page 15 of the SAER).

92 Petition at 22.

93 NFS, LBP-23-02, 97 NRC at __ (slip op. at 48).

94 See LAR, attach. 1 at 1-8 to 1-10 (PDF pages 19-21 of 35) (markup of current license with no changes to quantity).

23 and clarified in the proceedings before the Board,95 that is factually inaccurate. The LAR does

not seek any increase in the material possession li mit in the license; it seeks only authorization to

perform different services on those materials; thus, any new activities under the requested

license amendment will be offset by a reduction in NFSs current activities.96 Accordingly, the

Board held that ECANs misreading lacked adequate support for a contention and failed to

demonstrate a genuine dispute with the LAR, contrary to 10 C.F.R. § 2.309(f)(1)(v) and (vi).

On appeal, ECANs only retort to the Boards holding is a conclusory assertion that a

new industrial process will obviously increase air emissions.97 However, ECAN once again

fails to point to any alleged support for this statement, much less any support that was presented

to the Board. Thus, ECAN has not identified any error in the Boards ruling. ECAN goes on to

mention Revision 1 of the SAER and complains that it was not referred to in the ASLB

decision.98 However, Revision 1 of the SAER was submitted to the NRC on

January 31, 2023the same day LBP-23-02 was issued. The Board cannot be faulted for not

considering information that was not presented to itand that did not exist during its

deliberations. In sum, ECAN has not identifie d any error of law or abuse of discretion.

Ultimately, ECAN has not met its burden to demonstrate, affirmatively, that the licensing

board misapplied controlling law or abused its discretion (e.g., by failing to consider an

argument) as to any of these four claims. Accordingly, the Appeal provides no basis to disturb

the Boards ruling on Proposed Contention C.

95 See, e.g., NFS Answer at 19.

96 NFS, LBP-23-02, 97 NRC at __ (slip op. at 48).

97 Appeal at 26-27.

98 Id. at 27.

24 D. ECAN Identifies No Error of Law or Abuse of Discretion in the ASLBs Ruling on Proposed Contention D

In Proposed Contention D, ECAN alleged NRCs Fuel Cycle Facility regulations have

failed to achieve a sustained safety culture at NFS and therefore, do not protect the public,

workers, or environment.99 ECAN argued that despite being subject to a history of safety

violations and being called to the NRCs Agency Action Review Meetings, NFS continues to

operate without the adequate regulatory oversight required to address worker safety and

protection of the public health and safety.100 As a result, ECAN contended the NRC must

impose stricter standards on NFS.101

In ruling on this proposed contention, the ASLB concluded it was inadmissible for two

reasons. First, the Board held that Proposed Contention D is a challenge to the validity or

sufficiency of a Commission regulation.102 Under 10 C.F.R. § 2.335, licensing boards may not

entertain challenges to the validity of Co mmission regulations in individual licensing

proceedings except in certain special circumstances where a waiver is requested and found to

be appropriate.103 Second, because ECAN did not include a petition for a waiver to impose

requirements beyond existing applicable regulations, the Board found Proposed Contention D

beyond the scope of the proceeding, contrary to 10 C.F.R. § 2.309(f)(1)(iii).104

In its brief, ECAN does not acknowledge or engage with the relevant legal standard for

an appeal under 10 C.F.R. § 2.311, which requires ECAN to identify an error of law or abuse

99 Petition at 35.

100 Id. at 35-36.

101 Id. at 40.

102 NFS, LBP-23-02, 97 NRC at __ (slip op. at 54).

103 See Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-05-24, 62 NRC 551, 559-60 (2005).

104 NFS, LBP-23-02, 97 NRC at __ (slip op. at 55).

25 of discretion in the Boards ruling.105 ECANs brief also fails to address the Boards discussion

of ECANs failure to seek or obtain a waiver to challenge NRC regulations and its finding that

Proposed Contention D did not satisfy the contention admissibility criteria in 10 C.F.R. §

2.309(f)(1)(iii). Instead, ECANs appeal repeats the original arguments from its Petition and

suggests that the Board somehow shirked its responsibility by avoiding the question at the core

of its Contention, about whether the requested amendment is appropriate in light of the NRCs

weaker QA regulations.106 However, that argument still presents an inadmissible challenge to

NRC regulations. ECAN has not pointed to any error of law or abuse of discretion in the

Boards ruling, which is plainly correct as a matter of law. ECAN simply restates its original

arguments, which does not constitute a valid appeal.107 For the reasons outlined above, the

Commission should affirm the Boards ruling on Proposed Contention D.

III. CONCLUSION

For all of the many reasons set forth above, the Commission should affirm LBP-23-02.

105 AmerGen Energy Co. LLC, (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 121 (2006)

(internal quotation marks omitted), citing USEC, Inc. (Am. Centrifuge Plant), CLI-06-9, 63 NRC 433, 439 n.32 (2006).

106 Appeal at 32.

107 Shieldalloy, CLI-07-20, 65 NRC at 503-05.

26 Respectfully submitted,

Signed (electronically) by Ryan K. Lighty RYAN K. LIGHTY, ESQ.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 (202) 739-5274 ryan.lighty@morganlewis.com

Executed in Accord with 10 C.F.R. § 2.304(d)

MOLLY R. MATTISON, ESQ.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 (202) 739-5540 molly.mattison@morganlewis.com

Counsel for Nuclear Fuel Services, Inc.

Dated in Washington, DC this 21st day of March 2023

27 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

BEFORE THE COMMISSION

In the matter of:

Docket No. 70-143-LA NUCLEAR FUEL SERVICES, INC.

March 21, 2023 (License Amendment Application)

CERTIFICATE OF SERVICE

Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, a copy of the foregoing

NUCLEAR FUEL SERVICES, INC.S BRIEF IN OPPOSITION TO ERWIN CITIZENS

AWARENESS NETWORKS APPEAL OF LBP-23-02 was served upon the Electronic

Information Exchange (the NRCs E-Filing System), in the above-captioned docket.

Signed (electronically) by Ryan K. Lighty RYAN K. LIGHTY, ESQ.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 (202) 739-5274 ryan.lighty@morganlewis.com

Counsel for Nuclear Fuel Services, Inc.

DB1/ 136977827.1