ML23080A294

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Nuclear Fuel Services, Inc.'S Brief in Opposition to Erwin Citizens Awareness Network'S 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)
v • d • e


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. CONCLUSION ................................................................................................................ 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).

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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 information 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).

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(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).

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[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.).

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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).

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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).

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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 appellant 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).

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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 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 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 those standards. Instead, Petitioners present vague and generalized commentary (including numerous statements raised for the first 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).

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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 cycle 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).

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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 determined 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 neither 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)).

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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.

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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 immaterial 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 attempts 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).

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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 these 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).

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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 this 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).

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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.

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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).

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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 effluents 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 regulatory 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.

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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 analysis 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).

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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.

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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).

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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 information 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.

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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).

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and clarified in the proceedings before the Board,95 that is factually inaccurate. The LAR does not seek any increase in the material possession limit 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 identified 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.

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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 Commission 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).

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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.

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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

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