ML20148N278
| ML20148N278 | |
| Person / Time | |
|---|---|
| Site: | 07002738 |
| Issue date: | 11/14/1978 |
| From: | Becker J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7811270053 | |
| Download: ML20148N278 (9) | |
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November 14, 1978
' % UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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RNATIONAL COMPANY ) License Application No. XSNM-1222
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(Agent for the Government of India ) Docket No. 70-2738 on Application to Export Special )
Nuclear Materials) ) <
NRC STAFF ANSWER TO MEMORANDUM IN SUPPORT OF HEARING By two motions dated 13 February 1978, the Natural Resources Defense Council, Union of Concerned Scientists, and the Sierra Club ("Movants")
requested the Commission (1) to order a resumption of the hearing regarding the continued export of low-enriched uranium to India for use as fuel for the Tarapur Atomic Power Station (TAPS), and (2) to consolidate the proceedings in Application XSNM-1060, on which Executive Branch views were then before the Commission, and Application XSNM-1222, i
which was then still under Executive Branch review.
The Commission by order dated March 6,1978 granted the request for consolidation. The request for a further hearing on XSNM-1060 was denied by order dated April 24, 1978. The order stated that the Commission had not yet rece'ived'an Executive Branch judgment on XSNM-1222 and there- I fore, it did not feel it appropriate to address at that time whether a public hearing should be held on XSNM-1222.
The Executive Branch views were received on September 18, 1978. On October 31, 1978 the Movants filed a memorandum in support of the motion 781127oo53
for a fu'rther hearing on license application XSNM-1222. The Movants state that many of the issues raised in their February 14, 1978 motion were not adequately addressed ir the Congressional hearings on Executive Order 12055, overriding the Commission's decision on XSNM-1060. They also state that the Executive Branch analysis on XSNM
-1222 fails to provide substantial information concerning developments during the last four months in regard to the adequacy of safeguards .
and assurances and the return of TAPS spent fuel.
The Movants contend that the Commission cannot now make tM determination that the issuance of the license would not be inimical to the common defense and security as required by section 57.c.(1) of the Atomic Energy Act of 1954, as amended (the Act). They contend, in particular, that the Commission cannot determine that export licensing criterion 1. of rection 127 of the Act or its equivalent has been met. They also assert that the hearing should address the question of the return of spent fuel from TAPS. The Movants submit that a hearing on exports of low-enriched uranium to India is in the public interest.
For reasons set forth below, the NRC Staff believes that the Commission should not order a hearing in conjunction with consideration of
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Application XSNM-1222.
Background
The above captioned matter is one in a series of applications from Edlow Internatinnal Company for licenses to export low-enriched uranium to India for TAPS fuel .
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The Movants orginally petitioned the Commission for leave to intervene and requested a hearing in the matters of license Applications XSNM-805 and XSNM-845. In its Decision of May 7,1976, the Commission found, inter alia, that Movants lacked standing and that a hearing was not required as a matter of right. At the same time, however, the Commission exercised its discretion and ordered that a hearing be held, in a manner and under a procedural format which is compatible with the orderly con-duct of the licensing process and with the conduct of United States foreign policy, on continued supply of nuclear fuel to India [3 NRC 563, 594 (1976)].
That hearing was conducted on July 20 and 21,1976 and resulted in a transcript of over 300 pages of testimony from witnesses, including a member of Congress, several former and current government officials, representatives of the academic community, and representatives of the Movants. The hearing supplemented an already extensive Commission record on the subject of supplying nuclear fuel to the TAPS.
In a Memorandum and Order of July 2,1976, the Commission determined, in a divided, opinion, that all statutory standards 'had been met and directed that license XSNM-805, as amended be issued [4 NRC 1 (1976)].
s In January 1977, Application XSNM-1060 was filed requesting a license to export additional fuel for the TAPS. On February 10, 1977, Movants filed two motions requesting that Application XSNM-1060 be consolidated with consideration of Application XSNM-845.
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In its Memorandum and Order of June 22,1977 [5 NRC 1327 (1977)], the Commission noted, among other things, that the Commission had already held public hearings, at which time all pertinent issues concerning el ship-ments to India for use at the TAPS were throughly ventilated.
The Commission also (a) stated that further submissions by the Movants on XSNM-1060 would appear to be an unnecessary duplication of that .-
effort, and (b) consolidated actions pertaining to XSNM-845 and XSNM-1060 to avoid any suggestion that the Commission had mooted, or was seeking to moot, the proceedings sub judice in NRDC v. NRC, No.
76-1525 (D.C. Circuit, filed June 11, 1976).
careful evaluation of Executive Branch views and recommendations, the Commission reached a unanimous decision on June 28, 1977 that license XSNM-845 should be issued [5 NRC 1358 (1977)].
As noted above, on February 13, 1978, tt.a Movants requested a resumption of the hearing regarding the continued export of low-enriched uranium to India for use in TAPS and to consolidate the proceedings in Application XSNM-1060 and XSNM-1222, the subject application. In an order of April 24, 1978, denying the requdst for a hearing on XSNM-1060, it was stated (7 NRC 456):
Ttfe Commission did not believe that further public participation with respect to that license application would generate relevant information or analysis and therefore con-cluded that written or oral hearings would not be in the public interest or assist the Commission in making the statutory determinations required by the Atomic Energy Act.
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. 5-Staff Views on Subject Motions The Staff notes that Movants do not here repeat their request for leave to intervene or aver that a hearing must be held as a matter of right.
These matters were thoroughly reviewed an<l decided upon under section 189 of the Act in the Commission's Memorandu.n and Order of May 7,1976. - In its decision in National- Resources Defense Council, Inc. and Union of ,
Concerned Scientists v. Nuclear Regulatory Commission, the Court of Appeals for the District of Columbia Circuit referred to section 304(b) and (c) of the Nuclear Non-Proliferation Act of 1978 and stated (580 F2d 698):
This last subsection, supra, thus directs in unequivocal language that the NRC need not afford any person an adjudicatory hearing in a nuclear export license proceeding. Petitioners' challenge in this respect is, therefore, moot, since in the present situation we are required to apply the law in effect at the time of the decision.
Section 304(b) of the Act requires that regulations be promulgated which establish procedures for public participation in such license proceedings.
This provision is the only basis for determining the hearing rights of groups such as petitioners and other individuals or persons. The precedential value of the NRC order under review insofar as it pertains to the right of persons to intervene in hearings is eliminated, since it was issued under the old law, and the new procedures will control future cases.
Accordingly, the provisions of 9110.84(a) of 10 CFR Part 110 apply to this renewed request. That paragraph provides that in such a case, the Commission will consider (1) whether a hearing would be in the public interest; and (2) whether a hearing would assist the Commission p 4
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in making the statutory determinations required by the Atomic Energy Act.
The Staff does not believe that the Commission should order a hearing in conjunction with consideration of Application XSNM-1222 for the following reasons.
First, the Staff does not agree with Movants' contention that the .
Commission cannot make the determinations required by the Atomic Energy Act of 1954, as amended, for issuance for- the proposed license based upon the assertions presented in the State Department's memorandum of September 15, 1978 with attachments and other information that has Leen made available to the Commission by the Executive Branch. As 5110.44(a) provides, the Commission's licensing decisions will be based upon a reasonable judgment of the assurances provided and other information available to the Federal Government, not only that contained in the Executive Branch's unclassified analysis of the application under sections 126 and 127 of the Act.
Second, the issues raised by the Movants' in their motion of February 14, 1978 and their Memorandum in Support of the Motion filed October 31, 1978, pertinent to the issuances of the license, were before the Commission when it considered Application XSNM-1060 and were considered in the two opinio'ns issued by the Commissioners at that time. Indeed, the issues raised (other than the matter of the unwillingness of the Commission's Office of Nuclear Safety and Safeguards to certify that IAEA safeguards are adequate) were considered by the Commission and thoroughly explored in the proceedings held in 1976 on Application XSNM-845, and reflected in its decision of June 28,1977 (5 NRC 1367-1369).
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4 The Movants' call attention to new information pertinent to the Commission's determination as to whether the export would meet criterion (1) of section 127 - Prime Minister Desai's statement of July 26, 1978 concerning nuclear explosives for engineering purposes and the IAEA Safeguards Implementation Report for 1977 - which was not before the Commission in any prior proceedings on licenses to export low enriched uranium for use as fuel at TAPS. The Commission has received classified information concerning Prime Minister Desai's statement from the Executive Branch. The Staff does not believe that exploration of this matter at a public hearing would significantly augment the information already available on this matter. An analysis of the Safeguards Implementation Report for 1977 is being prepared. The Staff is 6f the view that the avdilability of the Report does not justify a public hearing on License Application XSNM-1222.-
Accordingly, it is concluded the a hearing would not appear to be in the public interest nor does it appear likely it would assist the Commission in making the statutory determinations required by the Atomic Energy Act of 1954, as amended.
UV oanna M. Becker
~ Counsel for NRC Staff Dated at Bethesda, Maryland this 14th day of November,1978 ,
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 1
l In the Matter of ) l
) l EDLOW INTERNATIONAL COMPANY ) License Application No. XSNM-1222
)
(Agent for the' Government of India ) Docket No. 70-2738 on Application to Export Special )
Nuclear Materials) )
CERTIFICATE OF SERVICE I hereby certify. that copies of "NRC STAFF ANSWER TO MEMORANDUM IN SUPPORT OF HEARING" in the above-captioned proceeding has been served on the following by deposit in the United States mail, first class or air mail, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 14th day of November,1978.
Leonard C. Meeker, Esq. Daniel F. Ford, Esq.
James N. Barnes, Esq. Executive Director Center for Law and Social Policy Union of Concerned Scientists 1751 N Street, N.W. 1208 Massachusetts Avenue Washington, D. C. 20036 Cambridge, Massachusetts 02138 Thomas B. Stoel, Jr., Esq. Ms. Diane Wright Harmon S. Jacob Scherr, Esq. Assistant to the Vice President Natural Resources Defense Edlow International Company Council, Inc. 110017th Street, N.W.
91715th Street, N.W. Washington, D. C. 20036 Washington, D. C. 20005 Dr. Zbigniew Brzezinski George C. Deptula, Esq. Assistant to the President for Union of Concerned Scientists National Security Affairs 102515th Street, N.W. The White House Washington, D. C. 20005 Washington, D. C. 20500 Mr. Charles Clusen Ronald J. Bettauer, Esq.
Washington Representative Deputy Assistant Legal Adviser Sierra Club . Department of State 324 C Street, S.E'. Washington, D. C. 20520 Washington, D. C. 20003 Mr. Peter Tarnoff Mr. Louis Nosenzo Executive Secretary Deputy Assistant Secretary for Department of Justice Nuclear Energy and Energy Wa'shington, D. C. 20520 Technology Affairs Department of State Washington, D. C. 20520 e
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- 2-Barbara 0'Malley, Esq. Mrs. Herbert Scoville, Jr.
Department of Justice 6400 Georgetown Pike Room 3621 McLean, Virginia 22101 10th & Pennsylvania Ave. , N.W.
Washington, D. C. 20530 *Mr. Chase Stephens, Chief Docketing and Service Section Honorable Richard L. Ottinger U. S. Nuclear Regulatory Commission U.S. House of Representatives Washington, D. C. 20555 Washington, D. C. 20515
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- Samuel J. Chilk, Secretary Mr. William W. Lowrance U. S. Nuclear Regulatory' Commission Harvard University Washington, D. C. 20555 Program for Science and International Af fairs
- James L. Kelley, Esq.
9 Divinity Avenue Acting General Counsel Cambridge, Massachusetts 02138 U.S. Nuclear Regulatory Commission .
Washington, D. C. 20555 The Honorable Clarence Long .
U. S. House of Representatives
- Washington, D. C. 20515 9
Mr. Adrian Fisher 2721 "N" Street, N.W.
Washington, D. C. 20007 l
($00 anna M. Becker Counsel for NRC Staff i
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