UNITED STATES OF AMERICA 

NUCLEAR REGULATORY COMMISSION 

COMMISSIONERS: 

Stephen G. Burns, Chairman 

Kristine L. Svinicki 

William C. Ostendorff 

Jeff Baran 

In the Matter of 

SHAW AREVA MOX SERVICES, LLC 

(Mixed Oxide Fuel Fabrication Facility 

Possession and Use License) 

Docket No. 70-3098-MLA 

CLI-15-09

MEMORANDUM AND ORDER 

Nuclear Watch South, Blue Ridge Environmental Defense League, and Nuclear 

Information and Resource Service (together, Intervenors) challenge the Atomic Safety and 

Licensing Board’s ruling on the merits of Contentions 9, 10, and 11 in favor of the applicant, 

Shaw AREVA MOX Services (MOX Services).1

 For the reasons set forth below, we deny their 

petition for review. 

 

1 Intervenors’ Petition for Review of LBP-14-1 (Mar. 27, 2014; corrected Apr. 1, 2014) (Petition 

for Review); LBP-14-1, 79 NRC 39 (2014). Judge Farrar issued a “separate statement,” 

wherein he noted his “essential agreement with most of the substance” of the Board’s decision, 

raised additional concerns regarding the Board’s treatment of cybersecurity, and dissented with 

respect to portions of the Board’s decision regarding Contentions 9 and 11. Id. at 119-27 

(Farrar, J., dissenting). 
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I. BACKGROUND 

A. Procedural History 

This proceeding involves MOX Services’ application to possess and use strategic 

special nuclear material in a mixed oxide fuel fabrication facility located at the Department of 

Energy’s Savannah River Site.2

 The Board, in its initial decision, set forth a comprehensive 

history of the proceedings involving this facility, which commenced in 2001 when MOX Services 

submitted its Construction Authorization Request.3

 MOX Services received its construction 

authorization in 2005, and, in 2006, it filed an application to possess and use strategic special 

nuclear material, byproduct material, and source material at the MOX Facility.4

 Intervenors filed 

a petition to intervene, which the Board granted.5

 Based on the issuance of a revised 

Fundamental Nuclear Material Control Plan (Control Plan) in 2010, Intervenors proposed, and 

the Board admitted, Contentions 9, 10, and 11, which challenged MOX Services’ compliance 

with our material control and accounting (MC&A) regulations involving verification of the 

presence and integrity of strategic special nuclear material items and the resolution of alarms 

related to those items.6

As admitted by the Board, Contentions 9, 10, and 11 assert: 

Contention 9: [MOX Services’] Revised [Control Plan] does not 

satisfy the MC&A requirements in 10 C.F.R. § 74.55(b)(1) 

because it does not demonstrate that [MOX Services’] item 

monitoring program has the capability to verify, on a statistical 

 

2

 Ex. APPR00014, SHAW AREVA MOX Services, LLC’s Revised Preflied Direct Testimony on 

Contentions 9-11 (Mar. 1, 2012) (non-public) (MOX Services Direct Testimony), at 10. 

3

 LBP-14-1, 79 NRC at 47-50. 

4 Id. at 47. 

5 Id. at 48. 

6 Id. at 48 (citing LBP-11-9, 73 NRC 391, 395 (2011)).
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sampling basis, the presence and integrity of [strategic special 

nuclear material] item losses that total 5 formula kilograms of 

plutonium or more[,] plant-wide[,] within the time frames specified 

by the regulation[—]30 calendar days for Category 1[A] items and 

60 [calendar] days for Category 1B items contained in a vault or in 

a permanently control[led] access area isolated from the rest of 

the material access area.7

Contention 10: The Revised [Control Plan] is inadequate to 

satisfy the alarm resolution requirements in 10 C.F.R. § 74.57(b), 

which requires that licensees “shall resolve the nature and cause 

of any MC&A alarm within approved time periods.” In the event 

that alarm resolution requires an inventory of one of the four item 

storage areas identified in [MOX Services’] December 17, 2009 

Exemption Request, [MOX Services] has not demonstrated that it 

can meet its commitment to normally resolve the alarm within 

three days.8

Contention 11: [MOX Services] claims that in the event of alleged 

theft of plutonium from the [MOX Facility], it is capable of 

confirming the presence of a specific individual plutonium item 

within eight hours and verifying the presence of all [plutonium] in 

item form in vault storage within 72 hours. But [MOX Services] 

does not support this assertion with any information that would 

show how such confirmation and verification will be carried out in 

the specified timelines. In addition, as discussed above in 

Contentions 9 and 10, other statements by [MOX Services] in its 

exemption application and RAI responses strongly indicate that in 

fact, [MOX Services] is not capable of meeting these timelines 

with respect to certain categories of plutonium in vault storage. 

Therefore [MOX Services] has not demonstrated that it satisfies 

10 C.F.R. § [74].57(e).9

The Board generated a robust record in this proceeding based on two evidentiary 

hearings, substantial written testimony, and many exhibits.10 Based on this record, the Board 

issued its Initial Decision, LBP-14-1, rejecting Intervenors’ Contentions 9, 10, and 11 on their 

 

7 Id. at 55 (citing Licensing Board Order (Appendix—New Contentions 9, 10, 11) (Apr. 1, 2011) 

at 1 (Contention Order) (unpublished) (non-public)). 

8 Id. at 96 (citing Contention Order at 1). 

9

 LBP-14-1, 79 NRC at 107-08 (citing Contention Order at 1). 

10 Id. at 49-50. 
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merits.11 Intervenors have now filed a petition for review asking that we reverse LBP-14-1.12 

MOX Services and the Staff oppose the Petition; Intervenors replied to those answers.13 Before 

we address Intervenors’ petition for review, we first provide a short summary of our MC&A 

regulations and the contentions here at issue. 

B. Summary of Relevant Regulations and MOX Services’ Proposed MC&A System 

1. Summary of Regulations 

An applicant for a license to possess and use strategic special nuclear material must 

“establish, implement, and maintain a Commission-approved . . . MC&A . . . system” that will 

address the loss or theft of such material.14 Specifically, the system must enable the applicant 

to achieve the following five objectives: 

(1) Prompt investigation of anomalies potentially indicative of [strategic special 

nuclear material] losses;[15] 

(2) Timely detection of the possible abrupt loss of five or more formula kilograms 

of [strategic special nuclear material] from an individual unit process;[16] 

 

11 See, e.g., id. at 46. 

12 Petition for Review. 

13 Shaw AREVA MOX Services, LLC’s Answer Opposing Intervenors’ Petition for Review of 

LBP-14-01 (Apr. 24, 2014) (non-public) (MOX Services Answer); NRC Staff Answer to Petition 

for Review of LBP-14-01 (Apr. 24, 2014) (Staff Answer); Intervenors’ Reply to Oppositions to 

Petition for Review of LBP-14-01 (May 7, 2014) (non-public) (Reply). 

14 10 C.F.R. § 74.51(a). 

15 The term “strategic special nuclear material” means “uranium-235 (contained in uranium 

enriched to 20 percent or more in the U235 isotope), uranium-233, or plutonium.” 10 C.F.R. 

§ 74.4. 

16 The term “formula kilogram” means strategic special nuclear material “in any combination in a 

quantity of 1000 grams computed by the formula, grams = (grams contained U-235) + 2.5 

(grams U-233 + grams plutonium).” Id.

The term “unit process” means “an identifiable segment or segments of processing activities for 

which the amounts of input and output [strategic special nuclear material] are based on 

measurements.” Id.
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(3) Rapid determination of whether an actual loss of five or more formula 

kilograms occurred; 

(4) Ongoing confirmation of the presence of [strategic special nuclear material] in 

assigned locations; and 

(5) Timely generation of information to aid in the recovery of [strategic special 

nuclear material] in the event of an actual loss.17

To achieve these objectives, a licensee must, among other things, satisfy the 

requirements in 10 C.F.R. §§ 74.55(b) and 74.57(b) and (e), the regulations at the center of 

Intervenors’ contentions.18

The regulation at issue in Contention 9, 10 C.F.R. § 74.55(b), requires licensees to 

“verify on a statistical sampling basis, the presence and integrity of [strategic special nuclear 

material] items.”19 Any statistical sampling plan for verifying the presence and integrity of 

strategic special nuclear material items “must have at least 99 percent power of detecting item 

losses that total five formula kilograms or more, plant-wide, within . . . [30] calendar days for 

Category IA items and 60 calendar days for Category IB items contained in a vault or in a 

permanently controlled access area isolated from the rest of the material access area.”20 

 

17 10 C.F.R. § 74.51(a)(1)-(5). 

18 Although the NRC is currently considering amendments to Part 74, no changes to 10 C.F.R. 

§ 74.55 are proposed; the proposed change to 10 C.F.R. § 74.57 would not affect the issues 

addressed in this decision. Proposed Rule, Amendments to Material Control and Accounting 

Regulations, 78 Fed. Reg. 67,225, 67,228, 67,250 (Nov. 8, 2013). 

19 10 C.F.R. § 74.55(b). 

20 10 C.F.R. § 74.55(b)(1). To provide additional clarity, we provide below the definitions of 

some of the key terms used in this adjudication. 

A special nuclear material “item” is “any discrete quantity or container of special nuclear material 

or source material, not undergoing processing, having an unique identity and also having an 

assigned element and isotope quantity.” 10 C.F.R. § 74.4. 

The term “Category IA” material means any strategic special nuclear material “directly useable 

in the manufacture of a nuclear explosive device” (with three exceptions), and the term 

“Category IB” material refers to all strategic special nuclear material other than Category IA 

(continued . . .) 
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Contention 10 raises the issue of compliance with 10 C.F.R. § 74.57(b), which requires a 

licensee to “resolve the nature and cause of any MC&A alarm within approved time periods.” 

Finally, Contention 11 raises the issue of compliance with 10 C.F.R. § 74.57(e), which 

requires that a licensee be able “to rapidly assess the validity of alleged thefts.” 

The regulations at issue here do not prescribe any particular methodology for regulatory 

compliance, and they instead provide only the result that a licensee must achieve. This 

absence of specificity provides the “flexibility for licensees to select the most cost-effective way 

of achieving performance objectives.”21 A licensee must nonetheless demonstrate that, under 

the Atomic Energy Act, the licensee’s proposed methodology will not “be inimical to the common 

defense and security” and will not “constitute an unreasonable risk to the health and safety of 

the public.”22 Licensees must show with “reasonable assurance” that this standard has been 

satisfied.23

 

material. Id.

A “vault” is “a windowless enclosure with walls, floor, roof and door(s) designed and constructed 

to delay penetration from forced entry.” Id.

A “controlled access area” is “any temporarily or permanently established area which is clearly 

demarcated, access to which is controlled, and which affords isolation of the material or persons 

within it.” Id.

A “material access area” is “any location which contains special nuclear material, within a vault 

or a building, the roof, walls, and floor of which constitute a physical barrier.” Id. 

The phrase “power of detection” means “the probability that the critical value of a statistical test 

will be exceeded when there is an actual loss of a specific . . . quantity” of strategic special 

nuclear material. Id. 

21 Final Rule, Material Control and Accounting Requirements for Facilities Licensed to Possess 

and Use Formula Quantities of Strategic Special Nuclear Material, 52 Fed. Reg. 10,033, 10,034 

(Mar. 30, 1987) (Final Rule).

22 Atomic Energy Act of 1954, as amended, § 57c(2), 42 U.S.C. § 2077(c)(2). 

23 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 

235, 263 (2009); see also LBP-14-1, 79 NRC at 51-52. 
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2. MOX Services’ Proposed MC&A System 

Because all three contentions relate to MOX Services’ MC&A system, we provide a short 

summary of that system. MOX Services proposes to meet its obligation to verify the presence 

of strategic special nuclear material items using two computer systems that would be used to 

track the MOX Facility’s inventory.24 These two systems are the Manufacturing Management 

Information System (MMIS) and the Programmable Logic Controllers (PLCs).25 The MMIS 

monitors and supervises the automated production activities at the facility, directs the movement 

of material throughout the facility, and generates a “Perpetual Inventory Report” that includes 

items’ expected locations.26 The PLCs control the local movement and placement of strategic 

special nuclear material items and determine the actual location and identity of those items.27 

MOX Services proposes to verify daily the presence of every item of strategic special nuclear 

material by comparing the information in the PLCs and the MMIS.28

In addition, MOX Services proposes to verify the integrity of strategic special nuclear 

material items by sealing and designing the storage locations for strategic special nuclear 

material items in a way that renders the storage locations, and the items within, tamper-safe or 

the equivalent.29 Specifically, all but one item-storage-area boundary would constitute a 

 

24 Ex. APPR00014, MOX Services Direct Testimony, at 51-52. 

25 LBP-14-1, 79 NRC at 64-65 (citing Ex. APPR00014, MOX Services Direct Testimony, at 35-

37, 47-49, 56-57). 

26 See id. at 57, 64-65. 

27 See id. at 57, 64-65; MOX Services Answer at 3-4. 

28 See, e.g., Ex. APPR00014, MOX Services Direct Testimony, at 51-52. 

29 See, e.g., id. at 52-56. “Tamper-safing” refers to “the use of devices on containers or vaults in 

a manner and at a time that ensures a clear indication of any violation of the integrity of 

previously made measurements of special nuclear material within the container or vault.” 

10 C.F.R. § 74.4. 
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containment boundary, with each boundary protected by a tamper-indicating device or its 

equivalent.30 For these protected boundaries, MOX Services proposes to visually inspect the 

tamper-indicating device daily.31 According to MOX Services, “confirmation that the 

containment boundary has not been breached ensures the integrity of all the items contained 

therein.”32 The sole exception is the Assembly Storage Area, where MOX Services proposes to 

verify the integrity of the heavy assemblies (each about 1,500 pounds and thirteen feet long) by 

controlling access to the area’s crane.33 The access logs for the crane would be checked 

daily.34

MOX Services asserts that its use of the computer systems, as well as the periodic 

monitoring of secured and tamper-safe item-storage-area boundaries, enables it to verify daily 

the presence and integrity of all items in storage.35 Further, according to MOX Services, its 

MC&A procedures enable it to resolve an MC&A alarm “normally” within three days, and to 

confirm the presence (or absence) of any specific strategic special nuclear material item within 

eight hours of an alleged theft, and to verify the presence of every item of strategic special 

nuclear material within seventy-two hours.36

 

 

30 See, e.g., Ex. APPR00014, MOX Services Direct Testimony, at 52-56. 

31 See, e.g., id. at 57. 

32 Id. at 53. 

33 Id. at 33-34, 55. 

34 Id. at 55. 

35 Id. at 53-56. 

36 Id. at 69-70, 74. 
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II. DISCUSSION 

We will grant a petition for review at our discretion, upon a showing that the petitioner 

has raised a substantial question as to whether 

(i) a finding of material fact is clearly erroneous or in conflict with a 

finding as to the same fact in a different proceeding; 

(ii) a necessary legal conclusion is without governing precedent or is 

a departure from or contrary to established law; 

(iii) a substantial and important question of law, policy, or discretion 

has been raised; 

(iv) the conduct of the proceeding involved a prejudicial procedural 

error; or 

(v) any other consideration that we may deem to be in the public 

interest.37

We review questions of law de novo, but we defer to the Board’s findings with respect to 

the underlying facts unless they are “clearly erroneous.”38 The standard for showing “clear 

error” is a difficult one to meet: Intervenors must demonstrate that the Board’s determination is 

“not even plausible” in light of the record as a whole.39

Intervenors argue that review is warranted here because they have raised substantial 

questions as to considerations (i), (ii), and (iii) above.40 Intervenors, at bottom, find fault with the 

highly-automated MC&A system proposed by MOX Services.41 Many asserted legal errors, and 

several factual errors, each discussed in turn below, reflect Intervenors’ concerns. Further, 

Intervenors argue that the Board’s “approval” of the Control Plan raises substantial questions 

 

37 10 C.F.R. § 2.341(b)(4)(i)-(v). 

38 Honeywell International, Inc. (Metropolis Works Uranium Conversion Facility), CLI-13-1, 77 

NRC 1, 18-19 (2013); David Geisen, CLI-10-23, 72 NRC 210, 224-25 (2010). 

39 Honeywell, CLI-13-1, 77 NRC at 18-19; Geisen, CLI-10-23, 72 NRC at 224-25. 

40 Petition for Review at 2-3. 

41 Id. at 2. 
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“that can only be addressed by the Commission” regarding cybersecurity, the appropriate 

interpretation of our MC&A regulations, and the NRC Staff’s technical review.42 As discussed 

below, we find that Intervenors have not presented a substantial question that would justify 

review of the Board’s decision. 

A. Intervenors’ Challenges to the Board’s Rulings on Contentions 9, 10, and 11 

On appeal, Intervenors raise four specific challenges to the Board’s initial decision on 

Contentions 9, 10, and 11. First, with respect to Contention 9, Intervenors claim that the 

Board’s interpretation of 10 C.F.R. § 74.55(b)(1) with respect to item presence verification 

“ignores the term ‘verify’ in the regulation.”43 Second, also with respect to Contention 9, 

Intervenors argue that the Board’s finding regarding “item integrity verification is fatally 

unclear.”44 Next, Intervenors challenge the Board’s decision on Contentions 9 and 11 on the 

grounds that the Board violated “fundamental principles of regulatory interpretation” by allowing 

MOX Services to “rely on qualitative security measures to comply with the requirements for item 

integrity verification and theft detection.”45 Finally, Intervenors challenge the Board’s decision 

with respect to Contention 10 and the meaning of the phrase “any MC&A alarm” in 10 C.F.R. 

§ 74.57(b).46 As discussed below, we find that Intervenors have not raised a substantial 

question related to the Board’s resolution of these contentions. 

 

42 Id.

43 Id. at 12. 

44 Id. at 15. 

45 Id. at 17. 

46 Id. at 19. 
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1. Item Presence Verification (Contention 9) 

Intervenors assert that the Board erred by ignoring the term “verify” in 10 C.F.R. § 74.55 

in ruling on issues related to item presence verification.47 Intervenors contend that the plain 

meaning of the word “verify” requires a comparison of two independent sources of data, which 

they find incompatible with the Board’s ruling.48 Moreover, Intervenors interpret the context in 

which the NRC uses the word “verify” in 10 C.F.R. § 74.55(b) to require “a quantitative statistical 

measure ... and a sample size determined by quantitative analysis.”49 Intervenors would require 

a quantitative statistical measure, which they define as “the random selection, location, removal 

and physical inspection of an item’s identification and integrity.”50

 

47 Id. at 12-15. 10 C.F.R. § 74.55(b) states: “The licensee shall verify on a statistical sampling 

basis, the presence and integrity of [strategic special nuclear material] items. The statistical 

sampling plan must have at least 99 percent power of detecting item losses that total five 

formula kilograms or more, plant-wide, within: 

(1) Thirty calendar days for Category IA items and 60 calendar days for Category 

IB items contained in a vault or in a permanently controlled access area isolated 

from the rest of the material access area; 

(2) Three working days for Category IA items and seven calendar days for 

Category [IB] items located elsewhere in the [material access area], except for 

reactor components measuring at least one meter in length and weighing in 

excess of 30 kilograms for which the time interval shall be 30 calendar days; 

(3) Sixty calendar days for items in a permanently controlled access area outside 

of an [material access area]; or 

(4) Sixty calendar days for samples in a vault or permanently controlled access 

area and 30 calendar days for samples elsewhere in the [material access area] 

for samples each containing less than 0.05 formula kilograms of [strategic special 

nuclear material].” 

48 Petition for Review at 13-15. 

49 Id. at 14 (referring to the requirements in 10 C.F.R. § 74.55(b) that a licensee “verify on a 

statistical basis the presence and integrity of ... items” and also verify that the statistical 

sampling plan “have at least 99% power of detecting losses that total five formula kilograms or 

more.”). 

50 Id. at 14. 
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First, Intervenors have not shown that the Board ignored the plain-language meaning of 

the word “verify” in 10 C.F.R. § 74.55(b). Intervenors argue that the Board’s holding is 

incompatible with the plain meaning of the word verify, which they contend requires a 

comparison between two independent sources of information.51 But, as discussed below, the 

record contained substantial evidence demonstrating that data from the PLCs and the MMIS are 

sufficiently independent to enable a meaningful comparison.52 Therefore, we do not find that the 

Intervenors’ claim that the Board’s holding eliminates the concept of “independence” from the 

meaning of “verify” constitutes a substantial question warranting review.53

Next, Intervenors claim that that the Board’s holding ignored the requirement in 

10 C.F.R. § 74.55(b) that the applicant base the item presence verification on “a quantitative 

statistical measure” and a “sample size determined by quantitative analysis.”54 However, after 

taking extensive evidence on the record, the Board found that MOX Services’ proposed 

approach to verify item presence, which uses the comparison of two digital (i.e., non-physical) 

systems to sample “100% of [strategic special nuclear material] items[,] ... complies with the 

requirement to sample a sufficient number of items to result in at least 99% power of detecting 

 

51 Id. at 13-15. 

52 Although not cited by Intervenors, the Board did state that the NRC does not “require that 

such verifications be ‘independent.’” LBP-14-1, 79 NRC at 69-70 (citing Tr. at 1707-08). But, in 

making this statement, the Board was responding to Intervenors’ claim that to be truly 

independent, the verification must be physical (i.e., non-digital). Id. at 61-70. Moreover, the 

Board cited to portions of the transcript that considered whether § 74.55(b) requires a physical 

verification, not an independent one. Id. at 68-69. Therefore, we interpret this statement from 

the Board to be a short-hand for addressing the Intervenors’ claims regarding physical 

verifications and not a general holding regarding the meaning of “verify” within § 74.55(b). Such 

a holding would be incompatible with the Board’s extensive discussion of the additional 

measures MOX Services has taken to ensure that the PLC data are sufficiently accurate to 

enable a meaningful comparison to the MMIS. Id. at 77-92. 

53 Petition for Review at 13. 

54 Id. at 14. 
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the specified losses.”55 The Board concluded that, by sampling “the entire set of [strategic 

special nuclear material] items,” MOX Services would “sample a sufficient number of items” to 

comply with the 99% power of detection contemplated by 10 C.F.R. § 74.55(b).56 The Board 

found “no support” for Intervenors’ argument that 10 C.F.R. § 74.55(b) “plainly contemplates 

physical verification” or that MOX Services’ 100% sampling method does not include “a 

sufficient number of items” to satisfy the regulatory requirement.57 On appeal, Intervenors do 

not explain how the Board’s reading of 10 C.F.R. § 74.55(b) departs from existing law or 

otherwise ignores the sampling component of the verification requirement in 10 C.F.R. 

§ 74.55(b).58 Therefore, we find nothing in Intervenors’ petition for review or reply that raises a 

substantial question of law with respect to this issue. 

Intervenors also argue that, as a factual matter, the Board erred in finding that MOX 

Services’ comparison of the data in two computer systems satisfies the presence verification 

requirement of 10 C.F.R. § 74.55. According to Intervenors, “MOX Services’ own evidence 

[shows that] the data systems are not independent.”59 Intervenors argue that the absence of an 

independent means of verification would preclude corroboration of the data in the PLCs and 

MMIS.60 But Intervenors do not address record evidence that explains how these systems 

communicate.61 To function properly, the two systems must communicate at some level, and, 

 

55 LBP-14-1, 79 NRC at 70. 

56 Id. 

57 Id. at 68-70. 

58 Petition for Review at 14. 

59 Id. at 14-15 (emphasis in original). 

60 Reply at 3. 

61 See, e.g., Ex. APPR00014, MOX Services Direct Testimony, at 50; Ex. APPR10037, SHAW 

(continued . . .) 
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as MOX Services explained, “[t]he PLC will always maintain its own mapping based on item 

movements even in manual mode, and if there is a difference at the end of the day between the 

MMIS and the storage PLC information, the difference will be identified through the nightly 

automatic mapping comparison.”62 We give substantial deference to licensing board findings of 

fact, and we will not overturn a board’s factual findings unless they are “not even plausible in 

light of the record viewed in its entirety.”63 Here, Intervenors have failed to raise a substantial 

question of fact regarding the Board’s finding in view of the ample record evidence that exists to 

support the Board’s determination. 

Intervenors also challenge the reliability of MOX Services’ computer systems, claiming 

that “MOX Services assumes that the MMIS and PLCs cannot fail and cannot be tampered with 

undetected under any circumstances.”64 Yet Intervenors have not identified any portion of the 

Board’s order that propagates such an error.65 Moreover, contrary to Intervenors’ claims, the 

record demonstrates that MOX Services has taken steps to ensure the operation of the MOX 

Facility is not affected by the failure of the computer systems. As noted by the Board, there are 

“at least six program features that prevent errors in MMIS and PLC data” and “five actions that 

are used to detect errors in MMIS and PLC data.” 66 Intervenors’ unsupported statements do not 

 

AREVA MOX Services, LLC’s Revised Pre-Filed Direct Testimony in Response to Board’s June 

29, 2012 Memorandum and Order (Dec. 5, 2012) (non-public) (MOX Services Supplemental 

Direct Testimony), at 13. 

62 Ex. APPR00014, MOX Services Direct Testimony, at 50.

63 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-03-8, 58 NRC 

11, 26 (2003) (citing Anderson v. Bessemer City, 470 U.S. 564, 573-76 (1985)) (internal 

quotation marks omitted); see also Geisen, CLI-10-23, 72 NRC at 220. 

64 Petition for Review at 14. 

65 See, e.g., id.

66 See, e.g., LBP-14-1, 79 NRC at 83-86 (citing Ex. APPR00014, MOX Services Direct 

(continued . . .) 
- 15 - 

raise a substantial question regarding the Board’s findings, nor are they sufficient to satisfy our 

criteria to overturn the Board’s factual findings. 

2. Item Integrity Verification 

Intervenors next argue that the Board’s interpretation of the NRC’s item integrity 

verification requirements is “fatally unclear” and rises to the level of a “clear factual error.”67 

They assert that the Board contradicts itself in stating both that (i) integrity can be verified 

without reference to the accuracy of the underlying data and (ii) the methodology’s accuracy “is 

an integral component of the requirement to provide reasonable assurance of item presence 

and integrity with a 99% power of detection.”68 Moreover, Intervenors argue, there are “two 

reasons why the integrity verification approach depends on accuracy of the data”: (1) “MOX 

Services depends on the accuracy of data in the MMIS to ensure that it can keep track of all 

items ... moving in and out of containment”; and (2) MOX Services uses the MMIS to maintain 

the seal records for the storage areas.69

Here again, Intervenors misconstrue the Board’s order and fail to identify a clear factual 

error on the part of the Board. As discussed by MOX Services, Intervenors conflate MOX 

Services’ proposed approach to verify item presence (comparison of PLC and MMIS data) with 

MOX Services’ proposed approach to verify item integrity (daily, physical inspection of tamper-

 

Testimony, at 10-18, 20-22, 38-39, 49, 53-55; Tr. at 1149, 1155, 1180, 1189-91 (Bell) 1306-07 

(Trikouros, Bell) 1185-86 (McDade, Clark); Ex. APPR10037, MOX Services Supplemental 

Direct Testimony, at 5, 10; Ex. APP000031, SHAW AREVA MOX Services, LLC’s Prefiled Reply 

Testimony on Contentions 9-11 (Jan. 24, 2012) (MOX Services’ Reply Testimony), at 14-16). 

67 Petition for Review at 15-17 (citing LBP-14-1, 79 NRC at 75-77). 

68 Petition for Review at 16 (quoting LBP-14-1, 79 NRC at 77, 81). 

69 Petition for Review at 16-17. 
- 16 - 

indicating devices or, in the case of the Assembly Storage Area, the crane log).70 As discussed 

above, MOX Services’ approach to item presence verification rests on a nightly comparison of 

data from the MMIS and the PLC computer systems. Thus, within the context of item presence 

verification, the Board extensively considered the question of accuracy.71 In contrast, the Board 

found that MOX Services’ “integrity verification approach does involve daily, physical, human 

confirmation that the containment boundaries around [strategic special nuclear material] items 

have not been breached.”72 Thus, the Board did not consider accuracy with respect to these 

integrity verification methods. As a result, we do not see any contradiction in the Board’s 

statements that would raise a substantial question warranting review.73

Further, Intervenors’ complaint that maintaining the tamper-indicating-device seal 

records in the MMIS illustrates a factual error on the part of the Board is unsupported.74 As 

MOX Services points out, Intervenors “provided no testimony, evidence, or legal argument” to 

support their complaint about the use of the MMIS to maintain seal records.75 In any event, 

there is ample evidence on the record that MOX Services’ commitment to verify daily—through 

 

70 MOX Services Answer at 13. 

71 LBP-14-1, 79 NRC at 77-92. 

72 Id. at 75 (citation omitted) (emphasis in original). 

73 The Board’s statement that “accuracy of the methodology is an integral component of the 

requirement to provide reasonable assurance of item presence and integrity with a 99% power 

of detection” appears to be the source of Intervenors’ confusion. LBP-14-1, 79 NRC at 81; 

Petition for Review at 16. But, in light of the discussion above, it appears that the Board was 

simply stating that accuracy is an integral component of the portion of the regulatory 

requirement in 10 C.F.R. § 75.55(b) that addresses presence verification. Indeed, this view 

finds considerable support in the statement’s placement within the discussion of data accuracy 

in MOX Services’ approach to item presence verification. LBP-14-1, 79 NRC at 81. 

74 Petition for Review at 16-17. 

75 MOX Services Answer at 14. 
- 17 - 

physical inspection—the tamper-indicating devices and crane log has no relationship to how 

MOX Services decides to store the records of these inspections. Intervenors have therefore not 

identified a material error of fact in the Board’s determination regarding verification of item 

integrity. 

Intervenors also criticize as “cumbersome and inefficient” MOX Services’ approach of 

considering all items contained within a single “containment boundary” to be a single item for 

purposes of item monitoring.76 But Intervenors do not claim that this concern raises a material 

question with respect to the Board’s findings.77 The Board determined that MOX Services’ 

approach to item integrity verification meets our regulatory requirements, and a claim of 

inefficiency in an applicant’s selected procedures is not sufficient to raise a substantial question 

or to demonstrate a material error in the Board’s decision. 

3. Physical Security and MC&A (Contentions 9 and 11) 

Intervenors next challenge to the Board’s decision relates to Contentions 9 and 11.78 

Here, the Board found that, based on its commitments in section 3.3 of the Control Plan, MOX 

Services “has provided reasonable assurance of its ability to rapidly assess the validity of 

alleged thefts within the 8- and 72-hour time frames.”79 Intervenors argue that the Board erred 

as a matter of law because “NRC regulations do not permit the substitution of security measures 

for MC&A measures; both types of measures are required.”80 Specifically, Intervenors argue 

 

76 Petition for Review at 17. 

77 Id. at 17. 

78 Id. at 17-18. 

79 LBP-14-1, 79 NRC at 113. 

80 Petition for Review at 18 (emphasis in original). Judge Farrar agrees with this point: MOX 

Services “cannot be given extra credit for doing what is already required.” LBP-14-1, 79 NRC at 

122 (Farrar, J., dissenting). Moreover, Judge Farrar calls into question the adequacy of MOX 

(continued . . .) 
- 18 - 

that the Board inappropriately relied “on qualitative security measures to substitute for full 

compliance with the quantitative requirements of MC&A regulations.”81 In essence, Intervenors 

question whether measures implemented by MOX Services to satisfy our 10 C.F.R. part 73 

physical security requirements can, at the same time, satisfy MOX Services’ 10 C.F.R. part 74 

MC&A obligations.82 With respect to Contention 9, Intervenors challenge the Board’s 

determination that “the physical protection features, which prevent intruder access, [provide] 

assurance that the data as originally generated in the PLCs represent an unchanged condition 

of storage of the items so tracked and recorded.”83 Similarly, Intervenors challenge the Board 

decision on Contention 11, which raised the issue of MOX Services’ ability to comply with 

10 C.F.R. § 74.57(e) (requiring that a licensee be able “to rapidly assess the validity of alleged 

thefts”).84

Intervenors again misunderstand the interrelationship of the different protective 

measures that MOX Services uses. The security measures bolster the MC&A measures; they 

do not substitute for them, nor did the Board so hold.85 Intervenors have not provided a basis to 

question the Board’s consideration of all elements (not just the computer systems) of MOX 

Services’ theft assessment commitments. Rather, in considering whether MOX Services’ 

 

Services’ data systems with respect to cybersecurity, given MOX Services’ lack of a current 

cybersecurity plan. Id. Judge Farrar would have conditioned his ruling on Contention 11 on 

“full-blown NRC review [of cybersecurity] before a license can be issued.” Id. (emphasis in 

original). As we discuss below, cybersecurity at fuel cycle facilities, like the MOX Facility, is 

currently the subject of a rulemaking. 

81 Petition for Review at 17. 

82 Id. 

83 Id. (citing LBP-14-1, 79 NRC at 76). 

84 Id. at 17-18. 

85 See, e.g., LBP-14-1, 79 NRC at 113.
- 19 - 

MC&A plan met our regulatory requirements, the Board considered the plan in light of the entire 

application and facility. As MOX Services observes, “Intervenors point to no ‘fundamental 

principles of regulatory interpretation’ that preclude the use of one or more specific actions, 

commitments, capabilities, structures, systems, or components to address the requirements of 

more than one regulation.”86 We therefore find that Intervenors have not raised a substantial 

question of law regarding the Board’s determination that MOX Services has demonstrated an 

ability to achieve the performance objectives in 10 C.F.R. §§ 74.55(b) and 74.57(e).87

4. Resolution of MC&A Alarms (Contention 10) 

Contention 10 raises the issue of compliance with 10 C.F.R. § 74.57(b), which requires a 

licensee to “resolve the nature and cause of any MC&A alarm within approved time periods.” 

This regulation, however, does not specify a particular time period for alarm resolution. A 

licensee must therefore provide reasonable assurance that it can achieve the performance 

objectives set out in this section of our regulations. NUREG-1280 provides guidance to 

applicants and licensees regarding compliance with the alarm-resolution requirements in 

10 C.F.R. § 74.57(b).88 In this instance, MOX Services committed to, and the Staff approved, a 

 

86 MOX Services Answer at 15-16 (citing Petition for Review at 17). 

87 LBP-14-1, 79 NRC at 113. “[MOX Services’] theft assessment commitments in Section 3.3 of 

its [Control Plan] follow NUREG-1280’s recommendations, proposing to use the computer 

system to identify the location of items in the event of an alleged theft. While [MOX Services] 

assumes the accuracy of its records systems, we find this acceptable because other NRC 

regulations and other elements of [MOX Services’] proposal provide reasonable assurance of 

the security and accuracy of its MC&A system. Additionally, and very importantly, the computer 

system is not the exclusive means by which [MOX Services] will assess an alleged theft.” 

(citations omitted). Id. 

88 Id. at 99 (discussing “Standard Format and Content Acceptance Criteria for the Material 

Control and Accounting (MC&A) Reform Amendment: 10 CFR Part 74, Subpart E,” NUREG1280, Rev. 1 (Apr. 1995), ch. 3 (ML031340295) (NUREG-1280)). 
- 20 - 

timeline consistent with that contemplated in NUREG-1280.89 The Board found that MOX 

Services provided “reasonable assurance that its proposed alarm resolution procedures, as a 

group, can resolve MC&A alarms within the 3-day period to which [MOX Services] has 

committed.”90

Intervenors take issue with the Board’s approval of MOX Services’ commitment to 

resolve alarms “normally” within three days.91 Intervenors describe as circular the Board’s 

reasoning (based on the Staff’s position) that “[w]e do not view as normal the conditions under 

which alarm resolution would be expected to take more than three days.”92 Intervenors argue 

that the Board’s conclusion as to what constitutes (or, more precisely, what does not constitute) 

normal conditions deprives the word “normal” of meaning and, further, that it “jettisons any 

objective measure of the condition under which [MOX Services] should be able to resolve an 

alarm within three days.”93 Intervenors claim that the Board “is making a wholly arbitrary 

distinction between ‘normal’ alarms and ‘abnormal’ alarms such that any alarm could be 

considered ‘abnormal’ just because it was not resolved in three days.”94

 

89 See, e.g., Ex. APPR00014, MOX Services Direct Testimony, at 69; Ex. NRC000006, NRC 

Staff’s Prefiled Direct Testimony of Tom Pham Concerning Contentions 9-11

(Oct. 19, 2011) at 5. 

90 LBP-14-1, 79 NRC at 99-100. The Board found that an inventory was not the only means 

available to an applicant to satisfy 10 C.F.R. § 74.57(b) and that the “suite of procedures” 

proposed by MOX Services can be used “individually or in combination to resolve alarms.” Id. 

at 99. 

91 Petition for Review at 19. 

92 Id. (citing LBP-14-1, 79 NRC at 107). 

93 Id. at 19.

94 Id.
- 21 - 

Intervenors provide no support for their challenge to the Board’s ruling and misconstrue 

the meaning of the word “normal” in this context. The Board concluded that “nothing before us 

convinces us that [MOX Services’] use of the term, and the Staff’s interpretation of that use, is 

contradictory to a reasonable interpretation of the rule.”95 Contrary to Intervenors’ argument, the 

Board, the Staff, and MOX Services did not focus on “normal” and “abnormal” alarms but rather 

on “normal” conditions wherein MOX Services “has committed to resolve alarms within three 

days.”96 As the Staff observes, the Board found that “an alarm at the MOX facility that would 

require more than three days to resolve would entail the simultaneous occurrence of five 

unexpected or unusual circumstances, and thus such circumstances could not be considered 

‘normal.’”97 Thus, we again find that Intervenors have not identified a substantial question that 

would merit granting their petition for review. 

B. Intervenors’ Assertions Regarding Additional Substantial Questions of Law, 

Policy, and Discretion 

Intervenors raise three additional claims asserting questions of law, policy, and 

discretion.98 We understand these arguments to support their request that we take review of 

LBP-14-1 under 10 C.F.R. § 2.341(b)(4)(iii). 

 

95 LBP-14-1, 79 NRC at 106. 

96 Id. at 106-07. 

97 Staff Answer at 16 (citing LBP-14-1, 79 NRC at 106-07). 

98 Petition for Review at 3, 20-25. Intervenors raise a fourth issue—a general concern regarding 

the fundamental importance of MC&A to national security and the protection of public health and 

safety—that is beyond the scope of this decision. Id. at 25. We agree with Intervenors that 

MC&A is a critical part of the finding that must be made with respect to this application. But this 

general concern, without more, does not rise to the level of a substantial question under 

10 C.F.R. § 2.341(b). Nor does it satisfy our strict contention admissibility rules, which do not 

allow a petitioner “to attack generic NRC requirements or regulations, or to express generalized 

grievances about NRC policies.” Duke Energy Co. (Oconee Nuclear Station, Units 1, 2, and 3), 

CLI-99-11, 49 NRC 328, 334 (citing North Atlantic Energy Service Corp. (Seabrook Station, 

Unit 1), CLI-99-6 49, NRC 201, 217 n.8 (1999)); Philadelphia Electric Co. (Peach Bottom Atomic 

(continued . . .) 
- 22 - 

1. Cybersecurity 

At the supplemental hearing, Intervenors expressed concern that the NRC has not 

adopted cybersecurity regulations for fuel-cycle facilities.99 The Board found that “whether or 

not the NRC may license the MOX Facility without NRC cyber-security regulations in effect is 

beyond the scope of this proceeding and not relevant” to the resolution of the contentions.100 

Further, the Board found that “Intervenors provided no evidence on [cybersecurity] and did not 

raise this concern before the supplemental hearing.”101 Intervenors lodge several, often 

overlapping, challenges to the Board’s handling of cybersecurity, claiming that it raises “major 

issues of law and policy.”102 Intervenors argue that the Board committed factual error in ruling 

that cybersecurity was “not currently before” the Board and “beyond the scope of the 

proceeding” because MOX Services brought cybersecurity into the proceeding “by relying on it” 

in the revised Control Plan.103 Intervenors further argue that the Board’s reliance on MOX 

Services’ protective cybersecurity measures raises significant policy questions because we 

have no cybersecurity regulations for fuel cycle facilities and, therefore, no standard by which to 

judge the adequacy of a licensee’s cybersecurity program.104 And Intervenors take issue with 

 

Power Station, Units 2 & 3), ALAB-216, 8 AEC 13, 20-21 (1974)). We therefore decline to grant 

Intervenors’ petition for review with respect to this general concern. 

99 LBP-14-1, 79 NRC at 94 (citing Tr. at 1857 (Curran)). 

100 LBP-14-1, 79 NRC at 95-96. Although Judge Farrar agreed that cybersecurity is not ripe for 

adjudication, he separately expressed his concern that MOX Services cannot create “a sound 

MC&A system” without the cybersecurity measures that are “the inherent underpinning ... of a 

dependable MC&A system.” Id. at 119 (Farrar, J., dissenting). 

101 LBP-14-1, 79 NRC at 94. 

102 Petition for Review at 20. 

103 Id. at 20-21 (quoting LBP-14-1, 79 NRC at 46-47). 

104 Petition for Review at 20. Regarding the significance of the cybersecurity issue, see id. at 

23. 
- 23 - 

the Board’s acceptance of MOX Services’ commitment to rely on its own compliance with DOE’s 

cybersecurity standards.105 Intervenors argue that in the context of this proceeding, it is DOE’s 

responsibility to create cybersecurity standards and to prove their adequacy to the NRC and the 

public.106 Citing Judge Farrar’s dissent, Intervenors argue that, “[a]t the very least, the NRC 

must review DOE’s cybersecurity standards in this proceeding or accept them in a 

[Memorandum of Understanding].”107 Finally, Intervenors challenge the Board’s decision as 

“effectively deferr[ing] the question of the adequacy of cyber-security for post-hearing resolution 

by the Staff.”108 We disagree with these assertions. 

Intervenors have not raised a substantial question related to the Board’s conclusions on 

the cybersecurity issue. The Board concluded that “the adequacy” of MOX Services’ 

cybersecurity systems “[was] not currently before [it].”109 We have long held that NRC 

adjudications are limited to the scope of admitted contentions.110 In interpreting the scope of an 

admitted contention, we look “back to the bases set forth in support of the contention.”111 We 

have carefully examined the supporting bases for Contentions 9, 10, and 11 and do not find that 

 

105 Id. at 20 (citing LBP-14-1, 79 NRC at 91-92). 

106 Petition for Review at 20-21. 

107 Id. at 21 (citing LBP-14-1, 79 NRC at 122-24 (Farrar, J., dissenting)). 

108 Id. at 21. 

109 LBP-14-1, 79 NRC at 46-47. 

110 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear 

Power Station), CLI-10-11, 71 NRC 287, 309 (2010); see also Dominion Nuclear Connecticut, 

Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349, 359 (2001) 

(“Petitioners must articulate at the outset the specific issues they wish to litigate as a 

prerequisite to gaining formal admission as parties.”) (internal quotations and citation omitted). 

111 Pilgrim, CLI-10-11, 71 NRC at 308-09 (internal quotations omitted). 
- 24 - 

they raise cybersecurity issues.112 Thus, we do not find that the Intervenors have raised a 

substantial question warranting review regarding the Board’s finding that cybersecurity was 

outside the scope of this adjudicatory proceeding.113

Contrary to Intervenors’ claims, the Board’s ruling is not inconsistent with the Board’s 

acknowledgement of MOX Services’ reliance on cybersecurity as one measure of several in 

place to assess the validity of an allegation of theft from the facility.114 As MOX Services points 

out, “[i]t was not an error for the Board to recognize these additional program steps, while also 

recognizing that the actual adequacy of at least one of those steps (the cyber-security) 

measures were not before it for decision.”115 In any event, if Intervenors sought to challenge 

MOX Services’ reliance on cybersecurity in its revised Control Plan, then our regulations provide 

that Intervenors should have filed a new or amended contention.116 Moreover, MOX Services 

observes that it “is required to implement the National Nuclear Security Administration (NNSA) 

Cyber Security Program” and “the NRC can inspect against and enforce [MOX Services’] 

commitment.”117

 

112 Petitioners’ Motion for Admission of Contentions 9, 10, and 11 Regarding Shaw AREVA 

MOX Services’ Revised Fundamental Nuclear Material Control Plan (July 26, 2010) 

(ML102220017). As the Board noted, Intervenors raised the concern that the NRC has not yet 

adopted any cyber security requirements for Part 70 fuel cycle facilities at the supplemental 

hearing. LBP-14-1, 79 NRC at 94. 

113 We are not persuaded otherwise by Commissioner Baran’s dissenting opinion. 

114 See, e.g., MOX Services Answer at 19-20. 

115 Id. at 20. 

116 10 C.F.R. § 2.309(c). 

117 Ex. APP000034, Program Cyber Security Plan Baseline Requirements (Jan. 24, 2012); 

LBP-14-1, 79 NRC at 94-95 (citing Tr. at 1750 (Klukan) and 1844 (Tiktinsky)). 
- 25 - 

To be sure, cybersecurity at fuel cycle facilities as a general matter presents an 

important policy issue, even if that issue is not appropriate for resolution in this adjudication as 

discussed above. Indeed, since the Board’s initial decision, we have taken additional steps in 

the development of rules governing cybersecurity at fuel cycle facilities. In particular, we have 

directed the NRC staff to engage in a rulemaking proceeding to develop cybersecurity 

regulations for fuel-cycle facilities, including the MOX Facility.118 Consistent with our 

longstanding practice, a licensing proceeding is not the appropriate venue for generic 

rulemaking issues.119 But Intervenors will have the opportunity to participate in the NRC’s 

rulemaking activities on cybersecurity for fuel cycle facilities. We encourage Intervenors and 

other interested members of the public to participate in the rulemaking as it progresses through 

the notice-and-comment process. 

2. NRC’s Regulations and MOX Services’ Control Plan 

Intervenors argue that a gap exists between our 10 C.F.R. part 74 regulations and the 

revised Control Plan. Intervenors refer to Judge Farrar’s juxtaposition of our current, assertedly 

“antiquated” regulations with MOX Services’ modern computerized tracking system and then 

observe that the Commission, when it originally promulgated part 74, did not contemplate the 

kind of MC&A measures that MOX Services proposes.120 This line of argument reiterates 

Intervenors’ earlier expressions of dissatisfaction with MOX Services’ proposed use of two 

computer systems to perform various MC&A functions, as opposed to “physical” verification 

 

118 Staff Requirements—SECY-14-0147—Cyber Security for Fuel Cycle Facilities (Mar. 24, 

2015) (ML15083A175). 

119 Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), ALAB-655, 

14 NRC 799, 816 (1981); Potomac Electric Power Co. (Douglas Point Nuclear Generating 

Station, Units 1 and 2), ALAB-218, 8 AEC 79, 85 (1974)). 

120 Petition for Review at 23-24 (quoting LBP-14-1, 79 NRC at 120 (Farrar, J., dissenting)). 
- 26 - 

processes. As the Board extensively discussed, by its terms, the regulation here is technologyneutral, and it therefore can accommodate technologies developed after its adoption.121 Here 

again, Intervenors have failed to raise a material question. The Board has determined, based 

on an extensive adjudicatory record that took into account Intervenors’ arguments and 

evidence, that MOX Services’ approach satisfies our regulations; Intervenors’ support for a 

different approach is not sufficient to raise a substantial question regarding the Board’s decision. 

3. Adequacy of the NRC Staff’s Review 

Finally, Intervenors ask us to grant their petition for review based on their claim that the 

Staff’s review was inadequate.122 Intervenors do not seek reversal of the Board’s decision on 

this ground.123 Instead, they ask us to conduct such a review ourselves.124 We decline to do so, 

on the well-established ground that the adequacy of the Staff’s review is not a litigable issue in a 

licensing case.125

C. Protected Information 

During the course of the hearing on this matter, the Board received testimony and 

exhibits, some of which were fully or partially withheld from public disclosure. In addition, the 

pleadings before us have been fully withheld from public disclosure. To ensure that protected 

information is not inadvertently disclosed, at this time this Memorandum and Order has been 

 

121 LBP-14-1, 79 NRC at 51-52. 

122 Petition for Review at 4, 24-25. 

123 Intervenors criticize the Board for not stating whether it was relying on the Staff and for 

stating merely that “[t]he Board has considered each witness’ testimony to the extent 

appropriate.” Id. at 24 (quoting LBP-14-1, 79 NRC at 55). Yet a review of the Board’s decision 

shows extensive citation to all parties’ testimony and exhibits. 

124 Petition for Review at 4. 

125 See, e.g., Curators of the University of Missouri, CLI-95-8, 41 NRC 386, 395-96 (1995); 

Paʻina Hawaii, LLC (Materials License Application), CLI-08-3, 67 NRC 151, 168 n.73 (2008). 
- 27 - 

released only to the parties. Within ten days of the date of this decision, the parties are directed 

to jointly submit proposed redactions to this decision or a statement that no redactions are 

needed. Any proposed redactions should be for the sole purpose of preventing public release 

of non-public information. Thereafter, we will release a publicly-available version of this 

Memorandum and Order as soon as practicable. 

 
- 28 - 

III. CONCLUSION 

For the reasons set forth above, we deny Intervenors’ petition for review. We direct the 

parties to jointly submit proposed redactions to this Order or a statement that no redactions are 

needed within ten days. 

IT IS SO ORDERED.126

For the Commission 

NRC SEAL 

 /RA/ . 

Annette L. Vietti-Cook 

Secretary of the Commission 

Dated at Rockville, Maryland 

this 23rd day of April, 2015. 

 

126 Chairman Burns did not participate in this matter. 
Dissenting Opinion of Commissioner Baran 

I respectfully dissent from the majority opinion. In my view, the issue of cyber security 

raises a substantial question that merits granting Intervenors’ petition for review. I believe that 

the information in the record is insufficient to support the conclusions reached by the Board and 

the Commission regarding the cyber security of the computerized systems that are intended to 

perform Material Control and Accounting (MC&A) functions at Shaw AREVA MOX Services’ 

(MOX Services) mixed oxide fuel fabrication facility. 

As a preliminary matter, I disagree with the Board’s finding that the Intervenors did not 

raise cyber-security concerns prior to the supplemental hearing. The record reflects that 

Intervenors expressed concerns relating to MOX Services’ cyber-security measures early in the 

proceeding, both in their initial testimony prior to the first evidentiary hearing and at the first 

evidentiary hearing.1

 In my view, that early introduction of cyber-security concerns placed the 

issue before the Board. 

I also disagree with the Board when it, in effect, concluded that the determination of the 

adequacy of MOX Services’ cyber-security program was beyond the scope of this proceeding. 

It is clear from the record before us that MOX Services will be relying on highly automated, 

computerized systems to, among other things, perform MC&A functions, including verifying item 

presence. These are novel systems unlike those used by other material licensees to date. Yet, 

 

1 See Ex. INT000001, Direct Testimony of Dr. Edwin S. Lyman in Support of Intervenors' 

Contentions 9, 10, and 11 (Oct. 20, 2011), at 11 (unnumbered) (non-public) (“[T]he security of 

these computer systems [the Manufacturing Management Information System and the 

Programmable Logic Controllers] must also be a concern, particularly in light of the 

contemporary threat environment.”); Tr. at 1303-04, 1420 (non-public) (Intervenors introducing 

Ex. INT000014, “MOX Services Cyber Security Threat Analysis,” Ver. 2.2 (Sept. 2009) to rebut 

MOX Services’ testimony that it is extremely difficult to tamper with its computer systems); Tr. at 

1524 (non-public) (Intervenors’ expert witness discussing compromise of the computer system 

with respect to alleged thefts). 
- 2 - 

the evidentiary record contains gaps with respect to MOX Services’ cyber-security program and 

how it relates to its MC&A systems. 

MOX Services does not currently have a cyber-security plan; rather, it has committed to 

follow NNSA cyber security standards when it develops its plan in the future. Because MOX 

Services will rely so heavily on first-of-a-kind, highly automated systems to perform some MC&A 

functions, the adequacy of its cyber-security program is integral to finding that the MC&A 

systems will function as intended and satisfy NRC’s regulatory requirements. As the Board 

explained, “accuracy of the methodology is an integral component of the requirement to provide 

reasonable assurance of item presence and integrity with a 99% power of detection, especially 

when item sampling is entirely computer-based.”2

Thus, in order for the Commission to determine that this unique MC&A system will 

function as intended, the Commission must find that MOX Services’ cyber-security program is 

adequate. To make such a finding, the NRC Staff should review the NNSA cyber-security 

standards that MOX Services has committed to follow and determine the sufficiency of those 

standards to provide reasonable assurance that the MC&A system will meet NRC’s existing 

MC&A regulatory requirements. While there is some information in the record related to cyber 

security, I find nothing in the record stating that either the Board or the NRC staff made a 

determination regarding the adequacy of cyber security at MOX Services’ facility. In the 

absence of an NRC determination that MOX Services’ cyber-security commitments will provide 

reasonable assurance that its MC&A systems will function as intended, I see no basis for finding 

that MOX Services’ proposed automated MC&A systems will satisfy 10 C.F.R. § 74.55(b). 

 

2

 LBP-14-1, 79 NRC 39, 81 (2014). 
- 3 - 

It may well be that the NRC Staff could readily explain that the cyber-security standards 

for the MC&A systems are adequate and that the MC&A systems will function as intended. But 

the record does not currently include such a demonstration. Granting the Petition for Review 

would provide an opportunity to supplement the record on this key issue. 

I acknowledge the agency’s longstanding practice of not accepting contentions related to 

matters that are (or are about to become) the subject of rulemaking.3

 In these circumstances, 

however, the rulemaking on cyber security for fuel cycle facilities being initiated by the NRC staff 

is unrelated to MOX Services’ ability to meet the NRC’s current MC&A regulations. Even 

though the Commission recently decided to proceed with this rulemaking, MOX Services must 

satisfy NRC’s existing MC&A regulatory requirements. With highly-automated and 

computerized MC&A systems, MOX Services cannot meet those requirements without ensuring 

data accuracy, which necessarily assumes data and cyber security. 

In sum, I would have the Commission grant the Petition for Review and supplement the 

record on MOX Services’ cyber security measures to provide reasonable assurance that NRC’s 

MC&A regulations can indeed be met by MOX Services’ unique systems. 

 

3 See, e.g., Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 

2), ALAB-218, 8 AEC 79, 85 (1975) (“[L]icensing boards should not accept in individual license 

proceedings contentions which are (or are about to become) the subject of general rulemaking 

by the Commission.”). 
UNITED STATES OF AMERICA 

NUCLEAR REGULATORY COMMISSION 

In the Matter of ) 

 ) 

Shaw AREVA MOX Services, LLC ) Docket No. 70-3098-MLA 

 ) 

(Mixed Oxide Fuel Fabrication Facility ) 

 Possession and Use License) ) 

CERTIFICATE OF SERVICE 

I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER CLI-15-09

have been served upon the following persons by U.S. mail, first class, or through NRC internal 

distribution. 

Office of Commission Appellate 

 Adjudication 

U.S. Nuclear Regulatory Commission 

Washington, DC 20555-0001 

Administrative Judge 

Michael C. Farrar, Chair 

Atomic Safety and Licensing Board Panel 

Mail Stop - T-3 F23 

U.S. Nuclear Regulatory Commission 

Washington, DC 20555-0001 

Administrative Judge 

Nicholas G. Trikouros 

Atomic Safety and Licensing Board Panel 

Mail Stop - T-3 F23 

U.S. Nuclear Regulatory Commission 

Washington, DC 20555-0001 

Administrative Judge 

Paul B. Abramson 

Atomic Safety and Licensing Board Panel 

Mail Stop - T-3 F23 

U.S. Nuclear Regulatory Commission 

Washington, DC 20555-0001 

Nicholas Sciretta, Law Clerk 

Matt Zogby, Law Clerk 

Catherine Scott, Esq. 

Christopher Hair, Esq. 

Marcia J. Simon, Esq. 

Eric Michel, Esq. 

Office of the General Counsel 

Mail Stop - O-15 D21 

U.S. Nuclear Regulatory Commission 

Washington, DC 20555-0001 

Shaw AREVA MOX Services 

P.O. Box 7097 

Aiken, SC 29804 

Attention: Dealis Gwyn 
Docket No. 70-3098-MLA 

COMMISSION MEMORANDUM AND ORDER CLI-15-09 

2

Glenn Carroll 

Coordinator 

Nuclear Watch South 

P.O. Box 8574 

Atlanta, GA 31106 

Louis A. Zeller 

Blue Ridge Environmental Defense League 

P.O. Box 88 

Glendale Springs, NC 28629 

Mary Olson 

Nuclear Information and Resource Service 

P.O. Box 7586 

Asheville, NC 28802 

Donald J. Silverman, Esq. 

Timothy P. Matthews, Esq. 

Anna L. Jones, Esq. 

Morgan, Lewis & Bockius LLP 

1111 Pennsylvania Avenue, NW 

Washington, DC 20004 

Diane Curran, Esq. 

Harmon, Curran, Spielberg & 

 Eisenberg, L.L.P. 

1726 M Street, NW, Suite 600 

Washington, DC 20036 

 [Original signed by Brian Newell] 

 _________________________________ 

 Office of the Secretary of the Commission 

 

Dated at Rockville, Maryland, 

this 23rd day of April, 2015