NRC questions 'troublesome omissions' on NFS project

By Kathy Helms-Hughes

STAR STAFF
khughes@starhq.com

   Attempts by local citizens and environmental groups to have their concerns heard about Nuclear Fuel Services Inc.'s plans to blend down 33 metric tons of bomb-grade uranium into fuel for nuclear reactors got a boost Thursday from the Nuclear Regulatory Commission.
   Presiding Judge Alan S. Rosenthal with the Atomic Safety and Licensing Board Panel, an administrative judge appointed to hear petitioners' objections, questioned omissions in the Federal Register notice posted July 9 which afforded the public opportunity to request a hearing.
   Judge Rosenthal and Judge Richard F. Cole, special assistant, were designated Sept. 3 to hear concerns submitted by David and Trudy Wallack of Greeneville and by Greeneville actress Park Overall on behalf of State of Franklin Group/Sierra Club, Friends of the Nolichucky River Valley Inc., Oak Ridge Environmental Peace Alliance, and Tennessee Environmental Council.
   Separate petitions were filed by Greeneville attorney Todd Chapman on behalf of 15 local citizens, including Impact Plastics' owner Gerald O'Connor, who has a lawsuit pending in U.S. District Court over groundwater contamination from NFS which he alleges has moved onto his business site.
   All petitioners claim they have "standing" because they live, own property, or recreate in the area of NFS and the Nolichucky River. The petitioners must establish standing in order to have a voice in the public review process. Petitioners claim that if NFS is allowed to proceed with the blend-down project, it would be harmful to their health, drinking water, property values, and the environment.
   NFS submitted its first of three license amendment requests for the Blended Low-Enriched Uranium Project on Feb. 28 to authorize the storage of low-enriched uranium at its Uranyl Nitrate Storage Building. The NRC blessed the project with a Finding of No Significant Impact on July 9. NFS was to submit another request in late August to construct and operate an Oxide Conversion Building and Effluent Processing Building, with another amendment request to follow later this year.
   Overall and the four environmental groups claim this is "segmentation," and is illegal under National Environmental Policy Act (NEPA) requirements.
   Overall, who starred in the NBC sitcom, "Empty Nest," said, "It's like I get a construction permit to build a house, and then: Oh, by the way, I'm going to build a basement and bring in some Red Devil Lye and make soap to wash my clothes; and the next thing you know, I've blown up the neighborhood because I've built a meth lab.
   "The process is a big deal. But if you take it in segments, it doesn't look so bad."
   Attorneys for NFS asked the NRC to deny petitioners' requests, stating that none of them had demonstrated "standing" or "injury in fact." The NFS response cited caselaw from Babcock and Wilcox rejecting "standing for petitioners living as close as one-eighth of a mile from and visiting an apartment 'within one foot' of the facility."
   Petitioners asked the NRC to perform a full Environmental Impact Statement for the project rather than an Environmental Assessment. NFS stated, "Although having an EIS prepared is a procedural right, 'the petitioner must suffer some concrete injury from the proposed agency action ...'
   "Here, Petitioners fail to demonstrate standing because they fail to show a realistic threat of direct, concrete, and palpable injury that is fairly traceable to the proposed license amendment." Petitioners claims also were dismissed as "vague and speculative ... lacking in all detail, about potential harm arising from the amendment."
   Impact's O'Connor objected on the grounds that NFS is in violation of the Safe Drinking Water Act. NFS attorneys said O'Connor "failed to describe any injury [or] trace any injury to the proposed license ... Merely owning business in the same general geographical area does not demonstrate injury in fact. His assertion of violation of the Safe Drinking Water Act is clearly outside the scope of the proposed license amendment."
   Overall said that according to NFS's response, "Everything is 'outside of the scope of the proposed license amendment.' Everything is outside any 'legitimate area of concern' or does not demonstrate 'injury in fact.'
   "How is anybody going to prove anything, to hear them? According to this, nobody -- nobody -- could get a hearing," Overall said. "This much of a burden is not on the people; I'm going to promise you that."
   Judge Rosenthal said Wednesday that each petitioner was opposed by NFS "on identical grounds. According to the licensee [NFS], none of the requesters had either established the required standing to challenge the proposed amendment or demonstrated, as also required by the Rules of Practice, the existence of an area of concern germane to the subject matter of the proceeding."
   Rosenthal said, however, that before the judges could consider NFS's objections to the hearing requests, a preliminary matter had to be addressed. "Although the Federal Register notice in question summarized in some detail the content of the Environmental Assessment that had led to the issuance of the Finding of No Significant Impact, as correctly observed in one of the hearing requests, there was an inadequate identification in the notice of the license amendment application itself.
   "The notice neither set forth the date upon which the notice had been filed or supplied any information as to how the content of the application might be located. This omission raises troublesome questions."
   The judge said his prior experience with Federal Register notices had left him with the impression that it is customary to provide sufficient information to enable a potential hearing requester to gain full access to the referenced amendment application.
   According to the judge, while the omission might have been inadvertent, the burden placed upon the hearing requesters to establish standing and a pertinent area of concern "is scarcely insubstantial. Thus, one might justifiably conclude that a notice of opportunity for a hearing that did not point the reader in the direction of a license amendment application is of doubtful validity ..."
   Judge Rosenthal said NFS's opposition to the submissions of the Wallacks, "notes at the outset that those hearing requesters do not appear to have read the license amendment application."
   Trudy Wallack said, "It just seems so unfair to put the burden of proof on the public. I can't thank Daryl Shapiro [NFS attorney] enough for his answer to our petition. I was coming right from the heart; I don't do anything that's not right from my heart. And it was point-blank: 'I don't understand what you all are doing.'
   "They said it appeared that all I was doing was responding to a newspaper article. That's all I had at that moment. I still don't know where the document is," she said.
   The judge ordered the NRC staff to respond to a set of questions no later than Thursday, Sept. 19, explaining the omission and how it might be remedied.