Kenneth Fletcher
WC Monitor
6/5/2015
Uranium conversion services company ConverDyn is still pushing a federal court to restrict the Department of Energy’s ability to transfer excess uranium to help pay for other work after DOE recently cut the level of those transfers, according to a court filing this week. ConverDyn sued DOE last year alleging that the Department’s plans to increase its excess uranium transfers would have an adverse material impact on the U.S. uranium industry. Last month, DOE cut the transfers, which are used in part to pay for cleanup at the Portsmouth site, and asked the court to dismiss the suit as moot. The court subsequently asked ConverDyn to show cause in light of the transfer reductions. But ConverDyn is claiming that the Department could again increase its transfers at any time, and asks the court “to at least partially cure the harm caused by the earlier transfers by restricting future transfers independent of any finding regarding the Secretary’s present compliance with the Act,” according to its June 2 filing in U.S. District Court for the District of Columbia.
DOE’s latest Secretarial Determination cut the transfers from 2,705 metric tons per year, authorized in a 2014 determination, to 2,100 metric tons, which ConverDyn calls a “token reduction.” In the 2015 determination, DOE “leaves open the possibility of making transfers at the levels authorized by the 2014 Determination should DOE again find it convenient to take advantage of the higher transfer levels authorized therein,” ConverDyn’s filing states. The situation also “falls squarely within the mootness exception for issues that are capable of repetition yet evading review,” the filing states. “The duration of any one Secretarial Determination is, as it was in this case, too short to be fully litigated. And, there is reasonable expectation that ConverDyn will be subject to the same action again.”
ConverDyn Has Claimed Transfers Could Cause ‘Irreparable Harm’
In its original suit, ConverDyn claimed that its business will suffer “irreparable harm” as a result of DOE’s 2014 Secretarial Determination, which increased the uranium transfers to up to 15 percent of the domestic fuel market from a self-imposed 10 percent guideline. That increase in transfers would challenge ConverDyn’s long-term viability, according to the company, which stated that under federal law DOE is required to ensure that its uranium transfers will not have an adverse material impact on the U.S. nuclear industry.
ConverDyn claims in its latest filing that its other arguments of “flaws” in DOE’s 2014 determination are still valid. “Among other things, ConverDyn asserts that DOE is not authorized under the Act to transfer uranium hexafluoride (UF6) or the conversion services component in its uranium, that DOE does not receive fair market value for the uranium it transfers as required by the [USEC Privatization Act], that DOE was required to use notice and comment procedures before it abolished a preexisting policy limiting transfers to 10 percent of the annual domestic nuclear fuel requirements, and that DOE did not provide a rational explanation for abolishing this 10 percent limit,” the filing states. “All of these claims address problems with DOE’s uranium transfers that exist apart from the 2014 Secretarial Determination.”
Following the lawsuit, DOE late last year began developing a new secretarial determination, for the first time opening up the process to public comment. Last month, DOE argued to the court that the new determination replaces the one released last year upon which the lawsuit is based, therefore ConverDyn’s challenge is “moot.” Given those actions, the U.S. District Court for the District of Columbia ordered that ConverDyn “show cause” before June 2 as to why the company’s claims should not be “dismissed as moot,” according to a court order released in May.
