BACKGROUND ON THE LES “WHITE PAPERS”

At an April 30, 2002 meeting at the NRC, LES submitted six “white papers” which very briefly, and with little legal foundation, explain the company’s rationale that the NRC Commissioners should decide critical issues before LES even submits a license application, thereby ensuring that members of the public, and state and local governments could not bring these issues up in licensing hearings. This approach is a transparent effort to limit effective public participation in hearings on an LES facility (at the time, LES had not even chosen a site), and to “resolve” in its favor the very issues that LES failed on when it attempted to build a similar facility in Louisiana, becoming the first entity ever to be denied a license by the NRC.

These issues include:

Analysis of Need and No Action Alternative Under NEPA

NEPA is the law that requires preparation of an Environmental Impact Statement for all major projects. Under that law, companies wishing to build major facilities must prove that their facilities are needed and not just being built because someone wants to make a profit. In the first LES case, we were successful in challenging the project before the Atomic Safety and Licensing Board (ASLB) on the basis that LES had not proved there was a need for a new uranium enrichment plant. The NRC Commissioners later sent this issue back to the licensing board for further review, which never occurred because LES ended the project.

LES wants the NRC Commissioners to rule now that there IS a need for this project, before any such need has been demonstrated. This would be a blatant display of favoritism on the part of the Commissioners, and must be rejected. LES must follow the same procedures as any other corporation. It is encouraging that the NRC staff appears to reject the proposed LES approach. Public comments should adamantly reject this and demand that LES attempt to demonstrate a need for this (demonstrably unneeded) facility.

Environmental Justice

LES was defeated in Louisiana because the ASLB found that its actions were in violation of a Presidential order banning environmental racism in the siting of polluting facilities. The NRC Commissioners partially overturned this finding, and instead found that LES was guilty of contributing to disparate environmental impacts, if not overt environmental racism. Now, through an incredibly narrow reading of the issue, LES wants the NRC to sweep away all environmental justice issues, before the plant even has been exactly sited, in order to take this issue away from the ASLB and citizen concerns. While Trousdale County, TN is predominately white, it should be noted that as an impoverished county, environmental justice issues still exist, although they may be quite different than in the Louisiana case. But whatever the case may be, it should be up to citizens and their elected officials to determine whether they want to bring up such issues, and an ASLB to determine whether to hear such issues, before an appeals board like the NRC Commissioners rules on this issue. Otherwise, every company ever wishing to build a new nuclear facility will come to the Commissioners and ask that environmental justice issues be dealt with before the facility comes to licensing.

Financial Qualifications

As was proved in the Louisiana instance, LES is essentially a shell corporation. Although several large corporations and nuclear utilities are part of LES, as a Limited Liability Corporation, none of these are actually putting up their assets for this project. Instead, each company establishes a subsidiary, which cannot touch the assets of the parent company. This subsidiary is what actually owns a share of LES. And each company puts up a limited amount of money to get LES through the licensing process. After that, LES would have to go to the financial markets to attempt to raise the money to actually build the plant. This scheme gives no confidence that LES would have the money to operate the plant, to decommission the plant when the time comes, and to handle the thousands of tons of radioactive/hazardous waste it would produce and leave onsite.

The ASLB agreed with us the first time around, but was later overturned by the NRC Commissioners. LES is attempting to argue that since the NRC Commissioners overturned this ASLB decision, it need not be addressed this time. However, each case is different, and this LES is different from the previous LES. The Commissioners should not address this issue, the ASLB should. If the ASLB finds that LES is not financially qualified to build and/or operate a uranium enrichment plant, the Commissioners could and should review this finding—but not before that point.

Radioactive Waste Disposition

The LES plant would create 7,600 tons of mixed radioactive/hazardous waste per year, in the form of UF6, or uranium hexafluoride—a toxic, radioactive substance. The volume and toxicity of this waste, and the very long length of its hazardous life (millions of years) make it unsuitable for disposal in a “low-level” radioactive waste dump, yet it is not high-level waste either. Moreover, the U.S. already has about 1 BILLION pounds of this material sitting at sites across the country, with no place to put it.

LES argues that the 1996 law that created the U.S. Enrichment Corporation (which essentially transferred Dept of Energy assets to the newly-formed and private USEC) requires that the DOE take the waste from any uranium enrichment facility in the country.

This is a misreading of the law. This provision was put in merely to ensure that the new USEC would not have to bear the burden of disposing or paying for the disposal of UF6 that had been created by the previous Department of Energy facilities. It was not intended to give carte blanche to anyone wanting to build a new uranium enrichment plant that taxpayers would cover their waste disposal efforts.

Nonetheless, LES is currently in self-described “negotiations” with DOE to try to force the agenc to take their waste. So far, those negotiations have not reached resolution. Despite the non-resolution, LES still wants the NRC to rule that DOE will take the waste, and that citizens and their elected officials cannot bring up LES’ lack of a waste disposal plan as an issue in licensing hearings.

The “White Papers” also cover foreign ownership of uranium enrichment facilities--a major issue, since only USEC can produce highly-enriched uranium for nuclear weapons, if needed; LES would not be able to. And they cover antitrust reviews of the LES corporation. In recent years, the NRC has been loathe to address antitrust issues, preferring to let the market determine whether a company is engaged in unfair competition or not. However, given the competition between LES and USEC, and the fact that LES is seeking special treatment from the NRC, including the antitrust clause, which would give it a competitive edge, this is exactly the type of scenario in which the NRC MUST retain its antitrust authority.

Michael Mariotte, Nuclear Information and Resource Service, October 10, 2002