NFS gets legal win for BLEU Project

By Thomas Wilson

   Nuclear Fuel Services, Inc. has won a legal victory related to the "BLEU" Project last week after an administrative judge denied requests by Northeast Tennessee residents and environmental groups to stay the issuance of a special nuclear materials license amendment submitted to the Nuclear Regulatory Commission by the Erwin-based company.
   Judge Alan S. Rosenthal, the presiding officer of an NRC Atomic Safety and Licensing Board panel, on Feb. 18 issued an order denying stay requests for the second of three license amendments that NFS is seeking. The order is a setback for environmental groups opposing the uranium down-blending operation known as the Blended Low-Enriched Uranium (BLEU) Project.
   The second license amendment submitted on Oct. 22, 2002, sought authorization to downblend the high-enriched uranium to low-enriched uranium in the BLEU Preparation Facility (BPF). On Jan. 26, the Sierra Club and others petitioners filed an application with the Rosenthal for a stay of the effectiveness of the NRC staff's decision earlier in the month to issue at this time the second license amendment associated with the BPF portion of the BLEU project.
   The order noted that the Sierra Club's stay request was filed under a section of NRC regulations that "adopts the familiar four factors to be considered in determining whether to grant or to deny stay relief."
   According to Rosenthal's order, the four factors are: whether the moving party has made a strong showing that it is likely to prevail on the merits; whether the party will be irreparably injured unless a stay is granted; and whether the granting of a stay would harm other parties; and where the public interest lies. The NRC's staff and NFS opposed the four factors warranting a stay of the second license amendment.
   In his order, Rosenthal wrote that "In considering whether (the Sierra Cub et al.) has made a sufficiently compelling case for the grant of the extraordinary relief sought, the appropriate stating point is an examination of the underpinnings of the claim that, absent the grant of a stay, it will suffer irreparable injury -- the second, and most important, stay factor set fourth in section 2.788(e) (of the NRC's rules),".
   According to the judge's order, the Sierra Club asserted that the petitioners "would suffer irreparable injury in the form of an unacceptable risk to its health and environment if the effectiveness of the second license amendment is not stayed."
   Rosenthal wrote that in order to have the irreparable injury factor weigh in its favor, a stay applicant must, "as the District of Columbia Circuit (federal court) has observed, demonstrate that "the injury claimed is both certain and great.
   "Further, under well-settled commission precedent, mere speculation about the potential occurrence of a nuclear accident does not constitute the requisite imminent, irreparable harm justifying a stay of a licensing decision," the judge's order stated.
   Rosenthal further wrote that the Sierra Club's claim of irreparable injury "falls far short of the demanding standard articulated by the Court of Appeals and the commission (NRC).
   "There is nothing in the relied-upon statement that might be taken as reflecting a (NRC) staff belief either that the occurrence of an uncontrolled accidental release is more than a remote possibility or that the consequences of such a release might be truly significant in terms of the public health and safety.
   "Of itself, then, the statement fails to establish a threat of injury both 'certain' and 'great'" the judge wrote.
   Rosenthal's order inferred that the Sierra Club's stay request asserted that the NRC staff failed to perform an adequate environmental review of the NFS license amendment request and also acknowledged that an accidental uncontrolled release of radioactive, toxic and explosive materials that will be used in the BPF "could pose a risk to the environment as well as to workers and public health and safety."
   The order also stated that Sierra "has presented nothing beyond the staff statement that might support the existence of such a threat; the irreparable injury factor manifestly weighs against the issuance of a stay of the licensing decision under challenge."
   Under the BLEU project, NFS and a partner have proposed down-blending high-enriched uranium and converting it into fuel for Tennessee Valley Authority nuclear power reactors. The second license amendment request sought authorization to down-blend high-enriched uranium (HEU) from U.S. Department of Energy stockpiles to a low-enriched form in a new NFS facility called the BLEU Preparation Facility, according to Rosenthal's order. The BPF will enable NFS to process approximately half of the BLEU Project's 33 metric tons of surplus HEU, with the other half being downblended at the DOE's Savannah River Site near Aiken, S.C.
   The second NFS license-amendment request had been filed on Oct. 22, 2002, according to the judge's order. The first license amendment request had sought approval to store low-enriched uranium-bearing materials in a structure at the NFS site in Erwin known as the Uranyl Nitrate Building.
   A third license amendment, requested by NFS for the operation of an Oxide Conversion Facility and related Effluent Processing Building, is currently under review by the NRC. These facilities will use a process developed by an NFS partner in the BLEU Project, Framatome ANP. The facilities will convert the liquid uranyl nitrate solution into a uranium oxide powder, which will be further processed at a Framatome facility in Richland, Wash., into uranium fuel pellets for loading into fuel rods and assemblies for use by TVA.
   On Jan. 21, 2003, rulings on those hearing requests and others filed earlier in connection with the first NFS special nuclear materials license amendment request were deferred pending the filing of a third, and final, license amendment request by NFS, the judge's order stated.
   Petitions filed by environmental groups and Northeast Tennessee residents, including a number of Greene County residents and a former Carter County resident and current property owner, have asked the NRC to hold a public hearing on the NFS license amendment requests and to order that a complete Environmental Impact Statement (EIS) be completed before the amendments are granted.