Letter to the Nuclear Regulatory Commission
re: Duke Cogema Stone & Webster application for authorization to
construct a MOX Fuel Fabrication Facility

March 9, 2001

Richard A. Meserve
U.S. Nuclear Regulatory Commission
Washington, DC 20555

Dear Chairman Meserve:

We are writing to you in reference to the application recently submitted by Duke Cogema Stone & Webster (DCS) for NRC authorization pursuant to 10 CFR 70.23(b) to construct a facility at the Savannah River Site (SRS) for the fabrication of mixed-oxide (MOX) fuel containing excess U.S. weapon-grade plutonium (WG-Pu), as well as to the anticipated submittal in June 2002 of an application by DCS for an operating license for this facility pursuant to 10 CFR 70.23(a)(8).

We understand that it is the Commission's intention to conduct any hearings on these MOX plant applications using the informal procedures of 10 CFR Part 2 Subpart L, even though the Commission has the authority to initiate hearings using formal Subpart G procedures if it deems such hearings to be "required in the public interest" by issuing a Notice of Hearing pursuant to 10 CFR 2.104. For the reasons stated below, we believe that the public interest would indeed be far better served if the Commission were to ensure that any MOX plant hearings would be conducted using the more rigorous procedures specified in 10 CFR Part 2 Subpart G. We therefore send this letter in support of the February 22, 2001 request by Georgians Against Nuclear Energy (GANE) and other interested parties that Subpart G proceedings be used for any MOX plant hearing.

We are aware that the Commission has recently approved the issuance of a draft rulemaking (SECY-00-0017) that would revise the Rules of Practice stated in 10 CFR Part 2. One major consequence of the proposed rule would be to greatly restrict the range of proceedings that would require Subpart G procedures, reserving such formal procedures only for enforcement hearings, uranium enrichment plant licensing proceedings (as required by statute) and reactor licensing proceedings that involve "a large number of complex issues that would clearly benefit from the use of formal hearing procedures."[1]

A Commission decision to require formal procedures for MOX plant licensing hearings would appear at first glance to be in conflict with the preference for deformalizing most NRC hearing procedures that is reflected in SECY-00-0017. However, our reading of the Commission's voting record suggests a desire to move away from a pro forma adherence to set procedures, and toward a more pragmatic and flexible approach that tailors the rigor of the hearing procedures more carefully to the significance of the matter under consideration. For example, as you state in your comments on SECY-00-0017 (quite sensibly, in our view), material licensing actions "can raise very complex and difficult issues that would benefit from the focused scrutiny that formal procedures allow" and therefore "the proposed category of cases to which formal hearing procedures would apply is too narrow in other respects."

You go on to suggest "categories of cases that would benefit from formal procedures..." which "might include "proceedings that present complex issues, that raise difficult disputed issues of material fact or of expert opinion, or perhaps ... that involve matters for which the preparation of an environmental impact statement was necessary." The MOX plant licensing clearly meets the last criterion, as it is the NRC's stated intention to carry out an EIS for this action. We maintain that a MOX licensing proceeding would fall within the other two categories as well. Some of the large number of complex issues that are likely to be raised in the MOX plant licensing proceedings and would benefit from formal resolution are as follows:

This list of "complex and difficult issues" clearly indicates that the MOX plant licensing proceeding would "benefit from the focused scrutiny that formal proceedings allow." Therefore, using the standards that you have articulated, this proceeding would benefit from a formal, Subpart G hearing. Inversely, public confidence in the MOX plant licensing process will suffer if intervenors are denied the rights of discovery and cross-examination, and a thorough resolution of these issues is not reached to the satisfaction of all parties.

Thank you for your consideration of our request. We look forward to a positive response.


Edwin S. Lyman, Ph.D.[2]
Scientific Director
Nuclear Control Institute

Arjun Makhijani, Ph.D.[3]
Institute for Energy and Environmental Research



1. Karen D. Cyr, NRC General Counsel, "Proposed Rule Revising 10 CFR Part 2 -- Rules of Practice," SECY-00-0017, January 21, 2000.

2. 1000 Connecticut Avenue, NW, Suite 410, Washington, DC 20036

3. 6935 Laurel Avenue, Suite 204, Takoma Park, MD 20912

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