ML20024F834
| ML20024F834 | |
| Person / Time | |
|---|---|
| Site: | 07000270 |
| Issue date: | 11/12/1990 |
| From: | Axelrad M MISSOURI, UNIV. OF, COLUMBIA, MO, NEWMAN & HOLTZINGER |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#490-11139 HP-3, NUDOCS 9012260278 | |
| Download: ML20024F834 (6) | |
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1 office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Attention:
Chief, Docketing & Service Section i
Re:
The Curators of the University of Missouri
" Request for Hearing and Stay Pending Hearing" filed by Lewis C. GrGen on November 2, 1990 Docket No. 70-00270
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Dear Sirs:
On November 2, 1990, three organizations (the
" Petitioners") represented by Mr. Lewis C. Green filed a
" Request for Hearing and Stay Pending Hearing" (the " Petition").
Pursuant to "the NRC regulations, specifically including but not limited to 10 C.F.R. Subpart G," they request "that a hearing be granted on the proposal to amend License No. SNM-247 to authorize possession and use of plutonium 241 and of 1.992 curies of plutonium."
Petition at 1.
They also request that "the licensing action be stayed pending the outcome of the hearing." Id.
The Petitioners admit that the " proposal to amend the
. license" to which they are referring is a Memorandum and Order issued by Judge Bloch on November 1, 1990.
J.d. at 3.
Petitioners are presently parties in an informal hearing under 10 C.F.R. Part 2, Subpart L, (Docket Hos. 70-00270-MLA and 30-02278-MLA), involving two previously issued amendments to licenses held by the Curators of the University of Missouri
(" Licensee"), namely, Amendment No. 74 to NRC License No. 24-0513-32 and Amendment No. 12 to NRC License No. SNM-247.
901226027G 90111R PDR ADOCK 07000270 3
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i Newnw & HoLTraworn, P.C.
offica of the Secretary November 12, 1990 i
Page 2 1
l In the course of that proceeding, a question was raised as to whethwr, under the contested Amendment No. 12 to NRC License No. SNM-241, the NRC authorization to Licenses to possess and use 10 grams of plutonium-239/ plutonium-240 incorporated the authority to possess and use trace levels of plutonium-241 contaminants that. wore associated with such plutonium-239/ plutonium-240.
On the basis of pleadings filed by the Petitioners (as Intervenors in that proceeding) and the Licensee 1/, the Presiding Officer issued the Nemorandum and i
Order (Licensee's Partial Response Concerning Temporary Stay),
uBP-90a38 (Nov. 1, 1990).
The Presiding Officer found that, being licensed to possess the 10 grams of plutonium-239/ plutonium-240, Licensee "can also possess the associated zuPu."
LBP-90-30, slip ap at 6, n. 11.
Nevertheless, he authorized the NRC Staff to amend License No. SNM-247 so that Licensee "may possess up to 1.21 curies of 8"Pu as part of the 10 grame of plutonium they are suthorized to possess under SNM-247."
Id. at 133 He authorized any party to file a request for rsoonsideration of his hemorandum and order within ten business days of the date of issuance.
Id.
l If Petitioners believe they are aggrieved by Judge Bloch's order of November 1, 1990, they can file a motion for i
-reconsideration in that : proceeding.
If they are-dissatisfied by his ultimate decision, tasy can eventually file an appeal.
Saa S-2.1253. They may even seek to have the Presiding Officer certify a question to the Commission pursuant to 5 2.1209(d).
However, the basic point is that whatever may be the
-Petitioners grievance with respect to any action of the Presiding Officer in that proceeding, tTe Petitioners must seek their remedyrin that proceeding.
Nothing in the Atomic Energy Act of l
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Licensee discussed at length the isotopic composition of the plutonium ~that it is-authorized to receive and presently holds under Amendment No.-12 to License No.
SNM-247; the relevant NRC guidance in Regulatory Guide 10.3 that, in license applications, the specification of isotopes "should include principal isotope and significant contaminants;" and why the plutonium 241 was not a " major dose-contributing contaminant" and did not have to be specified.
Een Licensee's Submittal-in Accordance with
" Memorandum (Hemorandum of Conference Call of October 19, 1990)" at 4-8 (Oct. 30, 1990).
t NewnAN & Hottzmoca, P.C.
Office of the Secretary November 12, 1990 Page 3 1954, as amended, or the NRC regulations entit.le the Petitioners to seek another, separate hearing on an action by the Presiding Of ficer simply because his action would result in an amendment to Licensee's license.
Petitioners' legal theory, which they have not spelled out, is not clear.
Whatever it may be, the reductio ad absurdam would be that, if the present proceeding before Judge Bloch were to result in his requiring that additional conditions be imposed upon Licensee, the Petitioners could request a new and separate hearing on such conditions because they would have to be embodied in a license amendment.
Such a result cannot be contemplated under any rational statute, regulation or agency practice.
Under S 2.772(i) the Secretary or Assistant Secretary is.uthorized to dony a request for hearing, "where the request fails to comply with the Commission's pleading requirements set forth in [Subpart GD, and fails to set forth an arguable basis for further proceedtngs, Such authority is also granted in Subpart L proceedings under S 2.1261.
Althougn the Petition does not constitute a request for hearing under either Subpart G or Subpart L, Licensee believes that the Secretary or Assistant Secretary has implicit authority to act thereon under NRC regulations.
Since the Petition " fails to set forth an arguable basis for further proceedings," 1 e,
for a new and separate hearing apart from litigation of LBP-89-30 in the current proceeding, Licensee respectfully requests that the Petition be summarily denied by the Secretary or Assistant Secretary.
The denial of the Petition should include a denial of Petitioners' request for a stay, which wholly fails to satisfy the requirements of 10 C.F.R. S 21.788(e).
If the Petition is not summarily denied, Licensee respectfully respects that it be provided 10 days within which to respond to the other infirmities of the Petition.
t NcwxAw & Hot.rztwoma, P.C.
Office of the Secretary November 12, 1990 Page 4 1
It is requested that service on Licensee in connection with the Petition be made to the following addressees:
Maurice Axelrad, Esq.
Newman & Holtzinger, P.C.
1516 L Street, N.W.
Suite 1000 Washington, D.C.
20036 and Director Research Reactor Facility Research Park University of Missouri Columbia, MO 65211 Respectfullysubmikted,
[%w:4 Maurice Axelrad, Esq.
Counsel for THE CURATORS OF THE UNIVERSITY OF MISSOURI
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UNITED STATES OF AMERICA NUCLEAR REGULATORY CONNISSION 30 MN 15 P2 :20 ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judge
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Peter B. Bloch BH AN&
In the Matter of
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Docket Nos. 70-00270
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30-02278-MLA THE CURATORS OF
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THE UNIVERSITY OF MISSOURI
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RE:
TRUMP-S Project
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(Byproduct License
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No. 24-00513-32;
)
ASLBP No. 90-613-02-MLA Special Nuclear Materials
)
License No. SNM-247)
)
)
CERTIFICATE OF BERVICE I hereby certify that copies of the letter dated November 12, 1990 to Office of the Secretary from Maurice Axelrad were served upon the following persons by deposit in the United States mail, postage prepaid and properly addressed on the date shown below:
Secretary U.S. Nuclear Regulatory Commission Washington, D.C, 20555 Attn:
Chief, Docketing & Service Section (Original plus two copies) l Office cf the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 c
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Executive Director for Operations l
U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Lewis C. Green, Esq.
Green, Hennings & Henry 314 North Broadway, Suite 1830 St. Icuis, Missouri 63102 Missouri Coalition for the Environment c/o Mr. Henry Ottinger 511 Westwood Avenue Columbia, Missouri 65203
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.2-Mid-Missouri Nucltar Weapons Freeze, Inc.
c/o Mr. Mark Haim, Director 804 C East Broadway Coluela, Missouri 65201 Physicians for Social Responsibility /
Mid-Missouri Chapter c/o Robert L. Blake, M.D.
M-228 UNC Health Sciences Center University of Missouri at Columbia Columbia, Missouri 65212 Dated this 12th day of November, 1990.
f Maurice Axelrad Newman & Holtzinger, P.C.
Suite 1000 1615 L Street, N.W.
Washington, D.C.
20036 (202) 955-6600 l
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