NRC denies petition to stop NFS construction

By Thomas Wilson

   The U.S. Nuclear Regulatory Commission (NRC) has denied a petition demanding Nuclear Fuel Services, Inc. stop construction of buildings intended for use as part of the Blended Low-Enriched Uranium ("BLEU") project at the company's Erwin site.
   However, the commission stipulates in their decision that NFS is taking a risk by constructing the multimillion dollar facilities before the NRC grants approval of three license amendment requests for the BLEU Project.
   "In short, NFS proceeds at its own risk with construction activities," reads the order issued by a four-member panel of commissioners on Tuesday. The commission further wrote that " ... while not absolutely barring pre-licensing construction, NRC rules provide a disincentive to early construction by raising the possibility of ultimate denial of the license application should an applicant move forward precipitously, despite open environmental issues."
   The petition to stop construction was filed by the Friends of the Nolichucky River Valley, the State of Franklin Group of the Sierra Club, the Oak Ridge Environmental Peace Alliance, and the Tennessee Environmental Council.
   The petitioners had sought to halt construction by NFS of any buildings intended for use as part of the BLEU Project.
   "We are very happy with the decision," said Washington-based attorney Diane Curren who is representing the petitioning groups. "We do not impose the downblending of highly-enriched uranium, but we are opposed to the licensing and construction of dangerous facilities before a building is done."
   The license amendment at issue in this proceeding is the first of three license amendments NFS seeks to implement to participate in the "BLEU Project" -- a Department of Energy program to reduce the stockpiles of surplus high-enriched uranium (HEU) through re-use as low-enriched uranium (LEU) or disposal as radioactive waste.
   "The NRC's decision to deny the petitioner's motion was in the public's best interest," NFS spokesman Tony Treadway said in a statement released Thursday. "The BLEU Project is vital to the national, regional, and local interests and the decision will enable NFS to continue to move forward with construction for implementation of the project."
   Curran said the decision was positive in that the NRC affirmed its regulatory authority. She also said the order indicated that if environmental issues involving the two pending license amendments popped up, NFS could not make an argument that the building was already constructed, and thus, dodge regulatory conditions imposed by the NRC.
   "It's like your mother told you: Don't make a mess unless you have a plan to clean up your own," said Curran. "We have to give my clients the environmental protection the law provides and we are insisting on that."
   Framatome ANP, Inc. has contracted with NFS to downblend surplus high-enriched uranium material to a low enriched uranium nitrate and to convert the low enriched uranium nitrate to an oxide form.
   "This decision will enable NFS to maintain a schedule that will see BLEU Project activities begin later this year," said NFS President Dwight Ferguson in a released statement.
   As to the first license amendment -- involving the Uranyl Storage Building -- the NRC staff has completed an environmental review and issued a final Finding of No Significant Impacts (FONSI). NRC staff have issued no FONSI for the second or third amendments. The commission writes, "It is therefore incumbent upon NFS to confirm the status of the environmental reviews for the second and third amendments prior to proceeding with construction."
   The petitioners argued that because the purpose of constructing the Uranyl Nitrate Building, the Oxide Conversion Building, and the Effluent Processing Building was "to operate them under a permit granted by the NRC," the construction activities themselves should be deemed a "federal action" and stopped.
   The petition further claimed that "[c]onstruction of the BLEU Project facilities will influence NRC's decision-making process regarding the BLEU Project, by committing resources to a pre-ordained course of action before the agency has decided whether to prepare an EIS that evaluates the impacts of that course of action or reasonable alternatives."
   The NRC order reads that while NFS will require license amendments before it can begin the process operations associated with the BLEU Project (and before it can exceed its current U-235 possession limit), NFS does not appear to require any NRC permit to begin construction activities."
   The order reads that, given NRC staff expect to conduct further environmental reviews, it is "incumbent upon NFS to confirm the status of the environmental reviews for the second and third amendments prior to proceeding with construction."
   The order also reads that NFS's construction activities do not "pre-ordain" or restrict the NRC's decision making involving the licensing amendment for the BLEU Project. "The staff retains full discretion to deny any or all of the three license amendments, or to impose licensing conditions, as needed," the order reads.