ML19263B600
| ML19263B600 | |
| Person / Time | |
|---|---|
| Site: | 07002738 |
| Issue date: | 01/05/1979 |
| From: | Barnes J, Curtis C, Stoel T CENTER FOR LAW & SOCIAL POLICY, National Resources Defense Council |
| To: | |
| Shared Package | |
| ML19263B598 | List: |
| References | |
| NUDOCS 7901220152 | |
| Download: ML19263B600 (5) | |
Text
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Before the UNITED STATES NUCLEAR REGULATORY COMMISSION klh Washington, D.C.
20555 In the Matter of
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License No. XSNM-1222
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EDLOW INTERNATIONAL COMPANY *
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Docket No. 70-2738
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(Agent for the Government of
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@i', ?N India on Application to Export
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MEMORANDUM OF POINTS AND AUTHORITIES IN 1
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SUPPORT OF PETITIONERS' MOTION FOR O'
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EXTENSION OF TIME TO SUBMIT WRITTEN COMMENT c
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Petitioners submit this memorandum in support of their motion for a 14-day extension of time to submit written comments on the above-captioned matter, and for a concommitant 14-day extension of the time to file reply comments.
DISCUSSION On November 1, 1977 the Edicw International Company, as agent for the Government of India, applied to the Commission for the authority to export 404.51 kilograms of U-235 contained in 16803.6 kilograms of uranium.
On September 13, 1978 the Ccemi~ssion received the Executive Branch views recommending issuance of the requested export license.
Following the receipt of Petitioner's October 31, 1978 supplemental memorandum suppcrting their February 14, 1978 motion for a further hearing in relation to XSNM-1222, the Com-mission's December 8, 1978 Order held that "further public proceedings on a written basis will be in the public interest and will assist the Commission to make the statutory determinations required by the Atcmic Energy Act," 43 F.R.
58234 (December 13, 1978).
It ordered that written comments ce submitted by January 11, 1979; a further pericd, until January 22, 1979, was provided for reply comments.
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- Petitioners submit that the timetable established by the Commission for the submission of written views is inadequate for a meaningful presentation.
Access to and an ability to critique all available information with respect to the Tarapur Atomic Power Station (TAPS), in particular, and the Indian stance vis-a-vis non-proliferation, in general, is essential for the preparation of use-ful comments on four topics raised in the Commission's Order,
i.e.,:
1.
the suf ficiency, for purposes of the Nuclear Non-Proliferation Act (NNPA), of Indian Prime Minister Desai's assurances that "he will not authorize nuclear explosions;"
2.
the adequacy, for purposes of the NRC's deter-nination under '.he NNPA, of the safeguards applied by the In tnrnational Atomic Energy Agency at the Tarapur f acility, and of U.S. government information on those safeguards; 3.
that status of U.S.-India negotiations regarding the return of spent fuel from Tarapur to the United States for storage; and 4.
the need for fuel requested. (Id., at 58235).
Much of this information is in the possession of the Cc=missica or Executive Branch agencies.
In order to obtain this information, Petitioners filed timely FOIA requests with the Cctmission, the Department of State and the Department of Energy on December 19, 1978.
(The FOIA request filed with the Commission is attached hereto as Exhibit 1; that request is substantively identical to those filed with the Department of State and Department of Energy.)
Petitioners have been advised by these governmental bcdies that the information requested will not even begin to be available until today, January 5.
Moreover, the most significant information undergo a process of declassification which will take at least must another week. (See Affidavits of Thcmas Devine, and Clifton E. Curtis,
' attached hereto as Exhibit 2 and 3, respectively.) Thus, the most valuable information will not be available to Petitioners until af ter the Commission's January 11, 1979 deadline.-1/
Obviously, this would serious impair the Petitioners' ability to provide meaningful ccmments and analyses to assist the Commission in making its decision, thus defeating the commission's purpose in ordering the hearing.
In a memorandum to the Commission dated November 2, 1978 Carlton Stoiber, Assistant General Counsel, advised the Commission that, if an oral hearing were ordered, the Office of General Counsel recommended that the Commission not eliminate the proposed time allowed for participants to obtain documents under the FOIA in preparation for such a hearing, because such a step "would appear to limit full public participation, without significant time savings (Stoiber memo, p.
- 4).
Mr. Stoiber's argument applies equally as well to the written proceed-ings' ordered by the Commission, especially in light of the time pres-sures cited above by the Petitioners.
The two-week delay in the proceedings would not appear to cause any great harm.
No immediate need for the fuel at TAPS has been 1/
Petitioners' suggested revised schedule of January 25, 1979 for written comments is based on the goed f aith assumption that the government bodies processing the FOIA requests will have made all rel-evant documents available to Petitioners by Januarv 19, 1979.
If the requested documents have not been made available by that date, Peti-tieners may be forced to request another extensien in time ccamensurate with the government's delay in releasing the desired information.
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demonstrated.
Indeed, this is one of the issues to be addressed in the proceedings, and Petitioners have not yet been given access to the information they have requested in this regard.
In its March 6, 1978 Order consolidating Export Application XSNM-1222 with consideration of XONM-1060, the Commission acknowledged that the Petitioners' February 14, 1978 request for further hearings in XSNM-1060 should be carried forward to the current proceeding.
Petitioners' February 1978 request, as well as their supplemental memorandum in support thereof dated October 31, 1978, reflect Peti-tioners' good faith efforts to have public proceedings convened with-out jeopardizing timely action by the Commission on the XSNM-1222 application.
Furthermore, the two-week delay will not cause the Cc= mission to exceed the statutory deadline for reaching its decision, since the statute provides that the President may not authorize the proposed export until 60 days after the public proceedings are completed (Chapter 11, 5126 b(2), Atomic Energy Act, as amended).
Thus, the Ccmmission would merely have to move the date that the proceedings are " deemed completed" from January 29, 1979 to an appropriate date after the new February 1, 1979 deadline for reply comments in order to preserve its full 60-day decisien-making period.
. CONCLUSION For all the reasons stated above, Petitioners respe_-fully request that their motion for an extension of time be gra.'ted.
Respectfully submitted f
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CLIFTON CURTIS JAMES N BARNES Mailing Address:
Center for Law and 3ccial Policy 17 51 N S tr eet,
N.W.
Washington, D.C.
20036 (202) 872-0670 Attorneys for the Sierra Club, Union of Concerned Scientists, and NRDC -
THOMAS B.
STOEL, JR.
S. JACOB SCHERR Mailing Address:
Natural Resources Defense Council 917 15 th S treet, N.W.
D.C.
20005 (202) 737-5000)
Attorneys for NRDC
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Felton, Director g
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7735 Old Georgetown Road Bethesda, MD 02214 E:< port of Special Nuclear Material to Inc12.a ( XS NM-12 2 2 ) --
Request for Production of Documents
Dear Mr. Felton:
This is a request under the Freedom of Information Act,*
as amended (5 U.S.C.
S552), for access to the records specified bel w.
The Nuclear Regulatory Commission (the " Commission"), in its Order of December 8, 1978, in EDLCW INTERNATICNAL COMPANY (Agent for the Government of India on Application to E:< port Special Nuclear Materials), License Application No. XSNM-1222 (Docket No. 70-2738), found that public proceedings on a written basis were in the public interest and would assist the Commission in making the statutory determinations required by the Atcaic Energy Act, as amended.
The undersigned Petitioners in that proceeding, the Natural Resources Defense Council, Inc., the Sierra Club, and the Union of Concerned Scientists, were advised by the terms of the Commission's Order that written comments siculd be submitted to the Secretary of the Commission by January 11, 1979, and that reply comments to those comments submitted by other participants should be submitted by January 22, 1979.
On May 14, 1976 the Petitioners presented a similar request to the Cc= mission for production of specified documents concerning the e:< port of special nuclear materials to India pursuant to License Application Nos. XSNM-305 and XSUM-845 (Docket Nos. 70-2071 and 70-2131).
(A copy of that request is attached.)
That request was made as the result of the Commission's May 7, 1976 Order eO Y
EXHIBIT 1
J.M.
Felton
- 19. December 1973 page 2 advising the Petitioners"that discovery in connection with the hearings to be held on the license application could be made
" pursuant only to the Freedom of Information Act."
For the pending proceeding (XSNM-1222), we have assumed that discovery should be handled in the same fashion.
Given the similarity of our May 14, 1976 request to the request herein made, this request should be considered supplemental thereto.
Where the requests specified below are substantively the same as those previously made, the request for production should be deemed to refer to documents not previously made available.
With that qualification, we hereby request access to any and all written reports, memoranda, studies or other documents in the custody of the Commission or Commission personnel with respect to:
(1)
Existing safeguards applicable to special nuclear materials shipped to the Tarapur Atomic Power Station
(" TAPS"),
as well as the safeguards experience at TAPS; (2)
The consideration of revised or new safeguards applicable to special nuclear materials shipped to TAPS resulting from the IAEA's Special S1feguards Implementation Report of 1977 and 1978; (3)
The possibilities of retrieval by the United States of special nuclear material from TAPS, including contingency plans, if any, in the event that India took actions inconsistent with its Agreement for Cocperation Between the Government of the United States and the Government of Indis Concerning Civil Uses of Atomic Energy (done at Washington, Augrst 3, 1963, entered into force October 25, 1963, T.I.A.S.
No. 5446), license conditions, the Nuclear Non-Proliferation Act of 1978 ( 'NNP A ), or other assurances to the United States; (4)
The nature of facilities other than the TAPS reactors within India, the safeguards applicable thereto, and the relation-ship of those facilities to TAPS; (5)
The nature and extent of physical security measures for the handling of special nuclear material intended for TAPS; (6)
India's plans for reprocessing and waste management of special nuclear materials shipped to TAPS, and the materials accounting safeguards and physical security standards applicable thereto;
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J.M.
Felton 19 December 1973 page 3 (7)
India's weapons. development capability and plans and its external and internal political situation as they relate to (a) the risks that special nuclear material supplied to Tarapur may be diverted and used for unlawful purposes, e.g.,
fabrication of nuclear weapons, (b) maintenance of safeguards agreements, and (c) security o.' nuclear materials and facilities; (8)
The effect of continued shipment of special nuclear material to TAPS on the non-proliferation policy of the United States, including the policies set forth in S306 of the NNPA, which requires, with limited exceptions, that any applications for the export of nuclear materials to countries such as India that are filed with the Commission after September 10, 1979, must meet the IAEA Safeguards (42 U.S.C.
52157);
(9)
The effect of continued shipment of special nuclear material to TAPS on the posiuion of other countries vis-a-vis nuclear weapons development; (10)
The effect of India's failure to commit itrelf absolutely to refrain from the development of further nuclear explosive de-vices on U.S.
non-proliferation policy as set forth in the NNPA; (11)
The effect of India's failure to accept safeguards on all its nuclear facilities on U.S. non-proliferation policy as set forth in the NNPA, as well as upon India's ability to develop nuclear weapons in unsafeguarded facilities; (12)
India's plans for developing national enrichment and reprocessing facilities; (13)
The effect on the absence of Indian agreement, at this time, on safeguards and physical requirements for future reproces-sing of spent fuel on U.S.
non-proliferation policy as set forth in the NNPA, and the risks that special nuclear material shipped to TAPS will not be used for peaceful purposes; (14)
The effect of the absence of physical security requirements applicable to the operation of TAPS on the possibility of sabotage, terrorism or theft; (15)
The total amount of U.S.
supplied enriched nuclear fuel shipped to India to date, broken down by percentage of enrichment, size and date of each shipment, and t'
-vpected time frame for using any such fuels which have not,ec been sent or used within India; and
m J.M.
Felton 19 December 1973 page 4 (16)
The capability and likelihood that India will construct, test and/or use nuclear explosive devices, including the text of communications to and from India on this issue, and U.S. analysis regarding Prime Minister Dessai's assurances.
We ask that the records requested above be made available for inspection and copying at the Commission's Public Document Rocm, 1717 H Street, N.W.,
Washington, D.C.
At such time as the records requested are made available, we will determine whether we will want any of the records reproduced.
We believe that this request is "in the public interest, because furnishing the information can be considered as primari3*r benefitting the public," and that any applicable fees should there-for be reduced or waived as permitted under the amended Freedom of Information Act.
The documents requested are relevant to the public proceeding scheduled to be held with respect to application to ship special nuclear material to TAPS.
The documents requested will provide needed background and bases for assessing the issues raised by the pending export license application.
Their production will facilitate the formulation of issues for the written cc=ments to be submitted and otherwise enhance the opportunity for a more complete discussion of the issues by all participants.
If you determine that some or all of the records requested are exempt from release, then state which exceptions you believe cover the materials you are not releasing.
In this connection, we advise you that we are prepared, if necessary, to execute an appropriate protective agreement with respect to any confidential or proprietary document, or, if the document requested falls within the categories specified in 10 C.F.R.
S 2. 790 (1), ( 2), (3 ),
to abide by such protective orders or agreements as the Commission may deem appropriate.
Finally, if you determine that some pcrtions of the requested records are exempt, we ask that you make available the remainder of the records, to the extent that the records deter-mined to be exempt are " reasonably segregable" as provided in the amended Act.
It is our intent that this Freedcm of Information Act request benefit all members of the public interested in the TAPS export license application XSNM-1222 and the public proceeding which has been scheduled to consider that application.
As provided for in the amended Freedom of Information Act, we will expect to receive a reply within ten (10) working days.
We urge that the documents be produced as quickly as possible as they become available in light of the fast-approaching deadlines for submission of written comments in the XSNM-1222 proceedings.
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J.M.
Felton 19 December 1973 page 5 If you have any questions concerning this request, we would appreciate your contacting us by telephone to expedite consideration of this matter.
Sincerely, Cliftc Curtis i;WLlA Ja/mes Barnes Counsel for Natural Resources Defense Council, Sierra Club, and Union of Concerned Scientists Attachment