ML20059K208
| ML20059K208 | |
| Person / Time | |
|---|---|
| Issue date: | 11/08/1993 |
| From: | Urban P NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC OFFICE OF INFORMATION RESOURCES MANAGEMENT (IRM) |
| Shared Package | |
| ML19346D296 | List: |
| References | |
| FRN-58FR50858, RULE-PR-2 AE67-1-001, AE67-1-1, NUDOCS 9311150217 | |
| Download: ML20059K208 (1) | |
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E UNITED STATES l' /3 )Wf NUCf "AD REGULATORY COMMISSION t
~ Nf WASHINGT ON D.C. 20555-0001 1
To:
Nuclear Document System Mail Stop P1-37 FROM:
Pamela Urban, OG i
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Mail Stop 15B18 DATE:
November 8, 1993
SUBJECT:
INFORMAL HEARING PROCEDURES FOR MATERIALS LICENSING ADJUDICATIONS (10 CFR PART 2)
The notice of proposed rulemaking for the above matter was published in the Federal Register at 58 Fed. Reg. 50858 (September 29, 1993).
This proposed rulemaking affects Part 2 only.
The rulemaking history for the above consists of five documents.
The documents are attached and are designated either "CF" or "PDR".
Please prepare a computer printout that lists the documents $nd i
return it to me as soon as possible.
If you have any questions, please call me at 504-1634.
Thank you.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 92
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ATOMIC SAFETY AND LICENSING BOARD r-Before Administrative Judge James P.
Gleason, Presiding Officer WED AUG - T G92 In the Matter of Docket No. 40-08681-MLA UMETCO MINERALS CORPORATION ASLBP No. 92-666-01-MLA (Source Materials License
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August 5, 1992 No. SUA-1358)
I ORDER AND MEMCRANDUM (REOUEST FOR HEARING AND STAY OF LICENSE AMENDMENT)
I.
Request for Hearing On July 2, 1992, the State of Utah filed a request for hearing on the issuance by the Nuclear Regulatory Commission of Amendment 30 to License No. SUA-1358.
The State also requests a stay of the amendment pending completion of the proposed adjudication.'
Licensee, the Umetco Minerals 2
Corporation (UMC), opposes the hearing request and the Staff also filed a response in opposition to both the
' Request for Hearing and Stay, Utah Department of Environmental Quality and Assistant Attorney General, July 2, 1992.
2Letter from R.A. Van Horn, Director of Operations, UMC, to NRC Executive Director of Operations James Taylor, July 16, 1992.
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hearing request and the request for a stay.3 The Staff 1
indicates it intends to participate as a party if a hearing is granted.
The UMC application for Amendment 30, filed on January 18, 1989, is to perform plant processing tests on 600 wet tons of feed containing source material received from the Teledyne Wah Chang Company in Albany, Oregon.
The f
I caterial for the processing test is not natural cre mined i
f for its uranium content but rather comes from the processing cf ore to recover circonium.
It contains greater than 0.05%
l recoverable uranium and UMC intends to process the material for its uranium content at its White Mesa Mill,'a licensed i
facility in Blanding, Utah.
After processing, UMC intends to dispose of the resulting tailings at the mill's impoundment.
The State asserts that the NRC is taking licensing action without first adequately determining wnether UMC is actually engaged in waste disposal of caterial from the Wah Chang Company instead of uranium reprocessing as alleged.
As an Agreement State, Utah asserts that it, rather than the NRC, may have jurisdiction over the materials if they are either low level wastc or source material.
Further, the State asserts that the NRC's amendment action may hinder the Department of Energy's (DOE) responsibility to assume long-term custodial care of the 3mc Staff's Response to Request for Hearing by State of 1
Utah, July 30, 1992.
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processed materials.
Finally, the State also expresses ~a f
concern over the lack of NRC oversight of UMC's tests and the characteristics of the materials to be processed.
The.
State contends, inter alla, that a hearing is necessary in i
order to resolve the nature of the materials being i
precessed, the licensee's intention in processing the.
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material, and questions concerning title to the material.
In opposing the hearing, UMC cites NRC's regulations, 10 C.F.R.
S 2.1205 (c) (2) (i) and (ii), requiring that a hearing request must be filed within thirty (30) days after the requestor receives actual notice of a pending application or agency action granting the application, or one hundred and eighty (180) days after agency action granting the application, whichever is earlier.
The Licensee contends that here the State had much more than thirty days knowledge of the license amendment application prior to filing its i
hearing request.
In support of its position, UMC references specific meetings it had with State environmental officials to discuss the application.'
In its response, the Staff alleges that the State had actual notice of the pending i
application as early as April 1989.3 Because the Presiding l
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officer is required under the Commission's regulations to determine that requests for hearings are timely filed, we address that issue first.
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dUmetco Minerals Corporation, July 16, 1992 at 2.
SStaff response at 6-7.
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4 The applicable regulation, 10 C.F.R.
S 2.1205(c)(2),
states in its pertinent part that:
h (c) A person other than an applicant shall file a f
request for a hearing....
(2) If a Federal Register notice is not published in accordance with paragraph (c) (i), the earlier of (i) Thirty (30) days after the requestor receives actual notice of a pending i
application or an agency action granting an application; or (ii) One hundred and eighty (180) days after agency action granting an application.
I 2
Both UMC and the Staff argue that since the State had actual notice of the then pending license application months before the !TRC approved and issued the amendment, a request for hearing was required to be filed within thirty days of such notice.
The State rejoins that it was entitled to l
file, as it did, within thirty days of the agency action granting the license amendment.
As the State does not appear to be seriously objecting to the assertion that it had prior notice of tne pending application, the question here is whether 10 C.F.R.
S 2.1205 (c) (2) (i) provides for two windows of opportunity rather than one for filing a request for hearing.'
Nothing in either the plain language of the regulation or the underlying Statement of Consideration militates against an interpretation providing f
' State of Utah's supplemental request for hearing at 1-.
August 31, 1992.
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two such windows of opportunity.
There is nothing in the plain language of the regulation to support an opposite i
conclusion.
Indeed, to subscribe to the position advanced i
by UMC and the Staff, one must conclude, without more, that the word " earlier" modifies both a notice of a pending
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application and notice of an agency action granting the i
application as well as the 180-day period set forth in 10 i
C. F.R 2.1205 ( 2 ) (ii).
Neither party has suggested any basis l
for such an interpretation nor can it be supplied here.
As physically structured and grammatically written, the words f
" earlier of " refer to and modify the whole of subsection (i) and the whole of subsection (ii).
The modifier
" earlier" can neither structurally nor grammatically properly modify both components of subsection (i) as well as j
i subsection (ii).
To obtain that result, the regulation would have to be written with three subsections so that the i
current first subsection would be split into two separately i
numbered subsections and the current second subsection would t
become a third subsection.
Accordingly, the plain language of section 2.1205 (c) (2) (1) provides two Windows of opportunity for filing a hearing request.
As the U.S.
Court of Appeals has suggested, an agency's interpretation of its own rules cannot fly in the face of the language of the f
I rules themselves.
See Union of Concerned Scientists v.
- NRC, 711 F.2d 370, 381 (1983).
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i In support of this conclusion, the commentary in the Commission 8s Statement of Consideration refers to the fact that the proposed rule, in Section 2.1205 (c), provides that a hearing petition will be considered timely if filed within thirty days after the petitioner receives actual notice of a 11gensina action.7 No rationale is apparent as to why the.
Commission would wish to require a person to file a hearing request at a time, such as is evident here, when ongoing communications may prevent the necessity for a hearing at i
all.
That expectation would be extinguished only when the NRC approved the action being opposed by the State.
It is a more reasonable procedure and, in any event, what the plain language of the regulation requires, that when an effort toward resolution fails, a thirty-day period would then ensue for requesting a hearing.
Here, the State acted within this time frame.
Thus the State's request for a l
hearing was timely filed.
i Alternatively, even if the State's petition is found i
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untimely, its lateness is excusable under the provisions of i
In the circumstances, the fact that the
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State was engaged in discussions with the Staff, as well as the Licensee, on the requested license amendnent makes the i
delay in filing an earlier request for hearing excusable.
I Also, the current request by the Staff, aareed to by Licensee, to delay processing of the material tends to f
7&te 54 Fed. Reg. 8271.
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7 buttress a finding that a grant of the hearing petition would not result in undue prejudice or. injury to the other participants in the proceeding.8 The fact that the proposed license amendment request was filed over three and a half l
years ago, and no action has ensued to the present time, also supports a finding that no undue prejudice would result l
from the grant of the hearing petition alone.
The applicable regulations also require that the Presiding Officer determine that the specified areas of j
concern are germane to the subject matter of the proceeding i
and that the requestor meets the judicial standards for standing. '
Neither the Licensee nor the Staff addresses the standing or areas of concern submitted in the State's
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petition.'
No serious question can be raised ora the f
State's standing in this proceeding.
Its petition cites issues of jurisdiction over the materials involved, the proper characteristics of such material, the purpose for which the materials have been received, the failure to place l
l proper conditions on the license amendment, and questions
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concerning governmental responsibility for the ultimate f
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t
' Presiding Officer Telephone conference, pp.
6-7, July 30, 1992.
'10 C. F. R S 2.12 05 (g).
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84he Staf f does allege, with supporting attachments, that I
substantially identical Utah State concerns have been l
addressed and resolved with notice and consent of the i
Commission prior to the issuance of the license amendment.
NRC Staff Response at 8, n.14.
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8 custody of the materials.
These matters setting forth i
possible injuries in fact are within the zone of interest t
protected by statute and meet the standards for standing in Commission proceedings."
I find the State has standing to participate and has set forth areas of concern germane to i
this proceeding.
II.
Request for Stay In its petition, the State also requests a stay of the license amendment pending the completion of a hearing.
In the Subpart L proceedings, an application for a stay is governed by the provisions of 10 C.F.R S 2.1263 which incorpcrates the traditional four-stay criteria of 10 C.F.R.
S 2.788:
1.
Whether the movant has made a strong showing that l
it is likely to prevail on the merits; 2.
Whether the movant has shown that it will be irreparably injured unless a stay is granted; 3.
Whether a stay would harm other parties; and 4.
Where the public interest lies.
Under the Commission's regulations, 10 C.F.R.
S 1
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2.1237(b), the State has the burden of persuasion on these i
factors.
Here, however, the State's petition fails even to
" Portland General Electric Co.
(Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 612-13 (1976).
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address the criteria for a stay set forth in the regulation.
Although arguably the third-and fourth-stay criteria might i
be satisfied by the State's recital of its concerns, the failure to address the first two criteria is fatal to its request.
Obviously, the Public interest would be served in f
having the question of jurisdiction finally established.
Similarly, the Licensee would not be harned by a stay because it has agreed to the Staff's request to delay any materials' processing until an effort is made to resolve the State's concerns, suora.
But since the Star.e has made no showing that it is likely to prevail on the merits or that it will be irreparably injured, a stay cannot be granted.
The request for a stay is therefore denied.
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l ORDER i
i For the reasons stated, it is, this 5th day of August 1992, ORDERED:
1.
The request for hearing by the State of Utah is granted and the request for a stay of Amendment 30 to License No. SUA-1358 is denied.
2.
A hearing on the License Amendment will be held and the time and other details concerning the hearing will be published at a future date.
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l 3.
Petitions to intervene in this proceeding nust be i
filed within thirty (30) days of this Order appearing in the I
Federal Register.
The Licensee and Staff will have ten (10) j i
days to respond after service of any petition.
l 4.
An appeal from this Order, by parties other than f
e i
the petitioner, may be filed with the Commission within ten l
(10) days of the service of the Order.
10 C.F.R.
I 5 2.1205(n).
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J aes P.
Gleason, Presicing Officer DMINISTRATIVE JUDGE l
Bethesda, Maryland August 5, 1992 1
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i
1 In the Matter of UMETCO MINERALS CORPORATION Docket No.(s) 40-8681-MLA
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(Source Materials License l
No. SUA-1358)
CERTIFICATE OF SERVICE i
1 I hereby certify that copies of the foregoing LB MEMO & ORDER (LBP-92-20) have been served upon the following persons by U.S. mail, first class, except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.
Administrative Judge Office of Commission Appellate James P. Gleason Adjudication Presiding Officer
)
U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board j
Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Administrative Judge Thomas D. Murphy l
Special Assistant Office of the General Counsel Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission i
U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555
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i R. A. Van Horn Kenneth L. Alkema Director of Operations Executive Director, Utah DEQ UMETCO Minerals Corporation 4120 State Office Building-P. O. Box 1029 4th Floor, P. O. Box 140811 Grand Junction, CO 81502 Salt Lake City, UT 84114 Denise Chancellor Assistant Attorney General 4120 State Office Building 4th Floor, P. O. Box 140811 Salt Lake City, UT 84114 Dated at Rockville, Md. this 7 day of August 1992 Office of the Secretary of the Commission
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LBP 2-22
- E67-/
003 UNITED STATES OF AMERICA
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NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD
'02 AUG 13 A10 :C3 Before Administrative Judge
~;n' James P.
Gleason, Presiding Officer
.;ri
- ht.t d In the Matter of Docket No. 40-08681-MLA UMETCO MINERALS CORPORATION ASLDP No. 92-666-01-MLA ERVED AUG 13 TA2 (Source Materials License August 12, 1992 No. SUA-13S8)
ORDER AND MEMORANDUM (AMENDMENT)
The Order issued on August 5, 1992 should have provided for an appeal of the denial of the State of Utah's (State) request for a stay of the Nuclear Regulatory Commission's grant of a license amendment to the Umetco Minerals Corporation.
I now amend that Order to provide an opportunity to the State for an appeal of my decision on the r
stay request.
An appeal may be filed within ten (10) days of the service of this Amendment, or such other times as the r
Commission may direct.
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w ames P.
Gleason, Presiding Officer ADMINISTRATIVE JUDGE Bethesda, Maryland 9
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4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
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UMETCO MINERALS CORPORATION Docket No.(s) 40-8681-MLA' (Source Materials License j
No. SUA-1358) t CERTIFICATE OF STtCE I hereby certify that copies of the foregoing LB ORDER & MEMO (LBP-92-22) have been served upon the following persons by U.S. mail, first class, except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.
Administrative Judge Office of Commission Appellate James P. Gleason Adjudication Presiding Officer U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Administrative Judge Thomas D. Murphy Sherwin E. Turk, Esq.
Special Assistant Colleen P. Woodhead, Esq.
Atomic Safety and Licensing Board Office of the General Counsel i
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Comission.
l Washington, DC 20555 Washington, DC 20555 R. A. Van Horn Kenneth L. Alkema i
Director of Operations Executive Director, Utah DEQ UMETCO Minerals Corporation 4120 State Office Building P. O. Box 1029 4th Floor, P. O. Box 140811 Grand Junction, CO 81502 Salt Lake City, UT 84114 Denise Chancellor Assistant Attorney General 4120 State Office Building -
4th Floor, P. O. Box 140811 Salt Lake City, UT 84114 t
Dated at Rockville, Md. this 13 day of August 1992 Off ce of the Secretary of the C,ommission i
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