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Uranium Enrichment in Judge's Hands

On September 7, 2007, three judges of the District of Columbia Circuit Court of Appeals heard oral arguments from three lawyers regarding whether the nation’s first private uranium enrichment plant would keep its license. The Louisiana Energy Services (LES) plant in southeastern New Mexico, near Eunice and the Texas state line, received its license on June 23, 2006 and is scheduled to being operations in 2009. (See Voices from the Earth, Fall 2006, for background.) The judges could issue a decision this fall, which could substantially determine the fate of the first large, new nuclear facility licensed in the United States in more than 30 years.

For Nuclear Information and Resource Service (NIRS) and Public Citizen (PC) that appealed the license, the major issues are whether a facility can be licensed that has no place to put its nuclear wastes, does not know even know what type of “low-level” wastes it will generate, and has not provided assured financing to pay for waste disposal. For the Nuclear Regulatory Commission (NRC), which issued the license, NIRS/PC does not have the legal right (“standing”) to bring the appeal because their members live near the enrichment plant, not near possible disposal sites. Moreover, NRC’s lawyers claim that some of the issues presented by NIRS/PC could not be raised with the court because they were not adequately presented to the NRC during the 30-month licensing proceeding. For LES, the court should recognize that the company has invested $250 million in hiring workers and starting construction and uphold the license.

THE BRIEFS

The NIRS/PC Brief in Chief was filed on April 2, 2007. The Brief stated that NRC violated the Atomic Energy Act (AEA), the Administrative Procedure Act (APA), the National Environmental Policy Act (NEPA), and that one of the commissioners should not have participated in the licensing decision because he was biased against NIRS. The Brief argued that NRC violated Section 193 of the Atomic Energy Act because it supplemented the inadequate Environmental Impact Statement (EIS) after the hearing that is required by the law. The Brief also pointed out that the NRC agreed that there was an error regarding how the board that heard the case had ruled on waste disposal costs. But that decision came almost two months after the license was issued and after the appeal was filed, but the Commission still upheld the license. Since there has been no disposal in the U.S. of depleted uranium, the major radioactive waste from uranium enrichment, where, how, and how much were major issues throughout the licensing process. NIRS/PC argued that because depleted uranium persists for million of years, and the doses to the public at Envirocare in Utah, the proposed shallow land disposal site, would exceed radiation protection standards in a few hours, deep disposal is required. Instead, NRC found that depleted uranium is Class A low-level waste (LLW) and could be disposed at Envirocare, which can receive only that that waste classification. However, NRC’s own staff did not determine that its Part 61 low-level waste disposal regulations would be met at Envirocare. Instead, an NRC staffer had a phone conversation with a Utah regulator and based his opinion that Envirocare could be the disposal site on that conversation. Thus, it was not clear what basis NRC used to issue the license. As the Brief put it: “NRC has left licensing criteria in confusion, judicial review is not possible, and remand is required.”

The NRC Response Brief was filed on May 16, 2007. It stated that the NIRS/PC local residents “live in New Mexico and won’t be affected by disposal impacts out-of-state….Hence, they lack standing to litigate DU [depleted uranium] claims.” The Brief also stated that “NRC did not, and was not required to, decide now whether Envirocare (or any specific site) met Part 61 standards.” The Brief also stated that NIRS/PC could not argue against the disposal cost financial assurance, because it did not challenge the allowance before the NRC. Further, the Brief stated: “the Commission expressly acknowledged that properly classifying large quantities of DU is an open question, requiring further study by NRC staff, a study the Commission directed its staff to undertake.”

The LES Amicus Brief was filed on May 31, 2007. The Brief argued that “the NRC is entitled to great deference because of the complex and scientific nature of atomic energy.” The Brief argues that because the U.S. Department of Energy (DOE) can be required to dispose of the depleted uranium, the disposal method and location and cost estimates cannot be challenged because they will be decided years in the future.

The NIRS/PC Reply Brief was filed on June 28, 2007. Regarding standing, the Brief states: “NRC’s and LES’s theories lead to ‘absurd results.’…NRC and LES would require members residing continuously near [possible disposal] sites in at least six states from the beginning of the proceeding to date. Moreover, an applicant need only change its proposed site to one with no nearby member to block a challenge by persons who will incur substantial injury.”

In reply to NRC’s Brief statement that waste classification is an “open question,” the IRS/PC Brief states: ...in the licensing proceeding, “NRC held flatly that ‘depleted uranium is a Class A waste.’ The contrary is now conceded.” Regarding financial assurance, the Brief pointed out that they tried to challenge the cost estimate but the claims were rejected because DOE would be responsible for disposal. That ruling was overturned by the Commission after the license was issued, when there was no way to make the challenge.

ORAL ARGUMENT

The three D.C. Circuit Court of Appeals Court judges hearing the scheduled 30-minute oral argument and deciding the case are Chief Judge Douglas Ginsberg, Judge Judith Rogers, and Judge Brett Kavanaugh. Lindsay Lovejoy, Jr., Attorney for NIRS/PC, began his argument stating: “This case asks whether we have learned the folly of beginning a major nuclear project without figuring out how to manage its waste safely, and how much it will cost, and how it will be paid for.”

Before he could get further into the argument, Judge Ginsberg asked several questions about whether the waste disposal issue was moot because DOE has to take the waste. Mr. Lovejoy responded that it was not moot because the NRC based its decision on private sector disposal and the waste remained at the other uranium enrichment sites even though DOE is legally obligated to take that waste.

Mr. Lovejoy then stated that the class A waste determination is a relevant, vital issue. Judge Rogers asked whether that decision could be made at a later date, as NRC suggests. Mr. Lovejoy responded that the determination is required in issuing the licensing. Judge Rogers also asked several questions about the deep disposal option, if the waste is determined not to be class A and therefore not allowed in shallow land sites. Mr. Lovejoy responded that the cost determination in the license was predicated on shallow land burial and that deep disposal would cost billions of dollars, but LES is providing only $450 million.

In response to further questions from Judge Ginsberg about waste classification, Mr. Lovejoy insisted that the Court had to rule that the waste was not Class A waste based on the evidence, so that license could not be valid. Mr. Lovejoy’s entire scheduled 15 minutes had been used up, even though he’d requested saving 5 minutes for rebuttal.

NRC Attorney Darani Reddick then began her scheduled 12 minutes (reserving three minutes for the LES attorney) with discussing the waste classification determination. She stated that the NRC staff has begun to consider that matter. Judge Ginsberg asked what would happen if the conclusion is that the waste is not Class A? Ms. Reddick said that LES would be required to have the amount of money to cover disposal.

Judge Kavanaugh: “Do they have an amount to cover deep disposal?”

Ms. Reddick: “Well, the record shows, Your Honor, that LES does have deep financial pockets. It has not been exactly—”

Judge Kavanaugh: “Has the Commission found that they have an amount sufficient to cover deep disposal?”

Ms. Reddick: “The Board did say in its decision in a mandatory hearing that the applicant will have sufficient funds to cover the extreme scenario of deep disposal.”

Judge Ginsberg wanted to know where in the record that finding appeared. Ms. Reddick gave a citation and stated: “I hope that’s correct.”

Ms. Reddick insisted that the Commission relied on the legal requirement that DOE would be required to take the waste. “End of story.”

Judge Rogers asked if what she was saying is that at sometime in the future,“you have no idea when,” there could be an additional condition of issuing this license that LES is liable for deep disposal?

Ms. Reddick responded that the Petitioners [NIRS/PC] concede that deep disposal is a viable disposal option.

Judge Rogers: “I don’t think they’ve conceded it’s financially possible.”

Ms. Reddick: “Correct. Right. That is their challenge.”

Judge Rogers: “And what’s the response?”

Ms. Reddick: “The response is that the record does show that LES would have the financial means to pay for it. And the way that the Commission will determine this is the LES license condition clearly states that on an annual basis the cost estimate for disposal must be revisited. So in the extreme case that classification changes and deep disposal is required, then LES is required to come up with that money. And it has to look at that on an annual basis. And if it can’t come up with that money, then it is possible that we could shut them down and stop operations.”

Judge Rogers and Judge Kavanaugh: “What happens then?”

Ms. Reddick: “Well, then, DOE is required to take this waste as a low level waste.”

Judge Kavanaugh: “To where?”

Ms. Reddick: “Excuse me? Well, the low level waste determination has not been challenged here. It’s the classification within the low level waste scheme, whether it’s Class A, B, or C. But it is clear that this is low level waste. And, according to the USEC Privatization Act, that requires the Department of Energy to take it.”

Judge Rogers: “Suppose it’s not Class A. Down the road, the Commission determines it’s not Class A. Then what happens?

Ms. Reddick: “Then what happens is the Department of Energy, if they are the ones who take the waste under the USEC Privatization Act, will determine where it will go.”

Judge Rogers: “Why is all of this waste piling up at the other sites?”

Ms. Reddick: “Your Honor, I’m not sure. But I’d like to go back—“

Judge Rogers: “Isn’t it because there is no deep disposal facility?”

Ms. Reddick: “There are deep disposal facilities that currently exist, I believe, but I’m not sure the reasons for the wastes at these DOE facilities.”

After numerous further questions, Ms. Reddick says, “I see that my time is up. You have no further questions?”

Judge Ginsberg: “Yes. Plenty of them.” And the questions continued for several more minutes.

Michael McBride, attorney for LES, began by stating that the plant is “under construction in New Mexico. Hundreds of people are employed in that construction. My client has spent over $250 million already toward that construction.”

After several minutes of questions, Mr. McBride concluded by stating that, in the highly unlikely case that the Court remanded the case to the NRC, that it not vacate the license.

Mr. Lovejoy was then allowed to make a final rebuttal in which he emphasized that LES had not been required to put up the billions that deep disposal would cost. He stated that there are no deep disposal sites for the waste and that all of the other existing low-level waste sites at Hanford, WA, Barnwell, SC, and Waste Control Specialists could not take the waste. The $450 million that LES was required to provide is not sufficient for deep disposal. Finally, he stated that under the law if the license is remanded, it must be vacated.

– Don Hancock

FOR ADDITIONAL INFORMATION CONTACT: Nuclear Regulatory Commission (NRC): http://www.nrc.gov/materials/fuel-cycle-fac/lesfacility.html/ Louisiana Energy Services (LES): www.nefnm.com/ Nuclear Information and Resource Service (NIRS): http://www.nirs.org/les/les.htm/ Public Citizen (PC): http://www.citizen.org/cmep/energy_enviro_nuclear/newnukes/les/ Note: The Court’s decision will be posted on the SRIC website, www.sric.org, when it is issued. Decision made on December 11, 2007.