NRC admits it erred in public notice on NFS project

By Kathy Helms-Hughes

   Staff with the Nuclear Regulatory Commission have admitted that a notice published July 9 in the Federal Register failed to properly inform the public of opportunity for a hearing regarding Nuclear Fuel Services Inc.'s proposed project to turn bomb-grade uranium into fuel for nuclear reactors.
   In Thursday's response to a memorandum and order issued Sept. 11 by Presiding Judge Alan S. Rosenthal of the Atomic Safety and Licensing Board Panel, NRC staff said that to remedy the defect, a "revised notice to properly notice both the license amendment application and the opportunity for hearing" will be published in the Federal Register. No publication date was given.
   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. Fifteen local citizens represented by Greeneville attorney Todd Chapman also filed separate petitions.
   Attorneys for NFS asked the NRC to deny petitioners' requests for a hearing, stating that none of them had demonstrated "standing" or "injury in fact." Judge Rosenthal said, however, that before NFS's objections could be considered, 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 ... 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," Rosenthal said. He gave the NRC staff until Sept. 19 to answer a set of questions regarding the notice.
   Jennifer Euchner and David Cummings, counsel for NRC staff, said: "Although the notice of the Environmental Assessment (EA) and the Finding of No Significant Impact (FONSI) was adequate, the notice of opportunity for hearing was inadequate in that it failed to provide appropriate notice of the license amendment application."
   NFS filed an application for amendment of its Special Nuclear Materials license Feb. 28, 2002, requesting authorization to construct and operate a Uranyl Nitrate Storage Building at its Erwin facility as part of the Blended Low-Enriched Uranium (BLEU) project.
   On July 9, the NRC published in the Federal Register notice that it was considering the license amendment and had prepared an Environmental Assessment and had made a Finding of No Significant Impact in support of the action. "The notice of opportunity for hearing, however, should not have been published with the notice of the EA and FONSI," NRC counsel said. "Rather, the notice ... should have been published upon receipt and docketing of the license amendment application."
   NRC attorneys said the July 9 notice "failed to provide the necessary information with regard to the license amendment application, and failed to identify the scope of the opportunity for hearing." While the failure "was not truly inadvertent, it was the unintended consequence of an inappropriate notice."
   Attorneys agreed with the judge that information regarding the license amendment application could have assisted petitioners in developing pertinent areas of concern. The revised notice will describe the proposed action and identify all related information, documents and references, attorneys said.
   While petitioners do not have to file additional requests for a hearing after publication of the revised notice, they may wish to supplement their original hearing requests, according to NRC.
   In the Sept. 11 memorandum and order, Judge Rosenthal also asked NRC staff whether the entire license amendment application was available for public inspection.
   According to NRC counsel, a non-proprietary version of the original Feb. 28 license amendment application was filed May 9 and is available for inspection on NRC's Agencywide Documents Access and Management System, or ADAMS, under Accession No. ML021350445. An attempt to verify the document through ADAMS led to a 36-page NFS Integrated Safety Analysis Summary for storing low-enriched uranyl nitrate solutions at the BLEU Complex. The original Special Nuclear Material license contains more than 600 pages.
   NRC counsel also said NFS submitted a revised license amendment application Aug. 23, under ADAMS Accession No. ML022610016. Searches on Friday and Saturday for a document by that number returned the result: "Nothing found."
   NRC counsel said all other documents related to or referenced in the license amendment application or the EA also are available for public inspection. No accession numbers were given.
   NFS took down its web site, which contained some information on the BLEU project, following an "Orange" alert issued prior to Sept. 11. Tony Treadway, spokesman for NFS, said the site was removed as a result of the alert notice by the federal government "for all nuclear facilities to take down their web sites for a while." When asked why no other facilities had taken down their web sites, Treadway said: "I'm only the spokesperson for NFS. We were asked to take the site down for a while by the NRC as part of the orange alert. We complied with their request. That's all I can tell you." The site is still down.
   NFS will meet with the NRC in Rockville, Md., on Sept. 30 to discuss an amendment application for the Blended Low-Enriched Uranium Preparation Facility. Attendance at that meeting is closed to members of the public "due to the sensitive nature of information to be discussed ..."